This is a motion of Lisa Ehrlich (hereinafter “movant”) for
permission to file a late claim pursuant to Court of Claims Act
, relating to alleged negligence
and medical malpractice arising out of the delivery and post-partum care of
movant on the birth of her daughter on March 19, 2003 at the State University
Hospital at Stony Brook (hereinafter “defendant”).
Movant made a previous motion to file a late claim, which this Court granted
(M-67533, filed April 9, 2004). Movant asserts that pursuant to this
Court’s decision, a claim was served on the Attorney General’s
Office on or about April 28, 2004, and filed with the Clerk of the Court on May
3, 2004 (Claim No. 109291). Movant indicates that the filed claim does not
contain an affidavit of service and counsel does not have a certified mail
receipt. By August 2004, when movant had not received an answer from the
defendant, movant served “another more detailed Claim . . . upon the
Attorney General in Albany (by regular mail) on or about August 16, 2004"
(Movant’s Affirmation ¶10). Movant also filed the claim with the
Clerk of the Court and was assigned a second claim number (Claim No. 109738).
Defendant cross-moves this Court for an order dismissing the
. As to the first claim, defendant
asserts that it was never served with a copy of the claim. Movant questions the
genuineness of this assertion. In his reply papers, movant’s counsel
argues that the claim was mailed to the same address that the order (M-67533)
was mailed with the notice of entry by movant. Movant asserts that defendant
got the order with the notice of entry based upon a letter from defendant to the
Court dated May 7, 2004. The letter states defendant was in receipt of the
Court’s decision granting movant permission to file a late claim without
opposition from defendant. However, defendant states it was never served with
the original motion, but given the circumstances of the claim, defendant would
not make a motion to vacate. Defendant does not state from where it obtained
the decision. The Court notes that the Clerk’s office mails decisions to
The Court will address defendant’s cross-motion to dismiss the claims
first. A cursory glance at the address used by movant in Exhibit B reveals that
it is incomplete. As to Claim No. 109291, movant has no affidavit of service or
certified mail return receipt. Movant does not assert that the claim was served
properly. The Court concludes that service of this claim was improper and
grants defendant’s motion to dismiss Claim No. 109291.
Defendant’s argument that Claim No. 109738 is a nullity is correct. A
proposed claim must accompany a motion for a late claim (Court of Claims Act
§10). Movant had no permission pursuant to Court of Claims Act §10(6)
to file a new claim. Further, movant admits that the service she attempted to
make was defective, in that service was attempted by regular mail. It is well
settled that service of the claim is jurisdictional in nature and movant’s
failure to appropriately serve the claim is fatal to the claim. The Court
grants defendant’s motion to dismiss Claim No. 109738.
The Court turns its attention to movant’s application for leave to once
again file a late claim pursuant to Court of Claims Act §10(6).
The alleged acts of malpractice occurred during a cesarean section when a pad,
20 cm x 20 cm x .3 cm, was left inside movant. The pad was discovered on March
24, 2003, after several diagnostic procedures and the placement of an NG tube.
An exploratory procedure was undertaken and the pad was removed.
In order to determine whether to grant a timely made application for permission
to file a late claim, the Court must consider, among any other relevant factors,
the six statutory factors set forth in Court of Claims Act §10(6):
(1) whether the delay in filing the claim was excusable;
(2) whether the State had notice of the essential facts constituting the
(3) whether the State had an opportunity to investigate the circumstances
underlying the claim;
(4) whether the failure to file or serve a timely claim or serve a timely notice
of intention resulted in substantial prejudice to the State;
(5) whether movant has another available remedy; and
(6) whether the claim appears to be meritorious.
The Court in the exercise of its discretion balances these factors, and, as a
general rule, the presence or absence of any one factor is not dispositive
(Bay Terrace Coop. Section IV v New York State Employees’ Retirement
System Policemen’s and Firemen’s Retirement System, 55 NY2d
In the previous decision, the Court fully discussed each of the criteria. At
the time of the original motion, the Court found movant to have a reasonable
excuse. The delay at this point is attributable to law office failure. This
factor no longer weighs in movant’s favor.
The second, third and fourth factors (notice of the essential facts
constituting the claim; an opportunity to investigate the circumstances
underlying the claim; and whether the delay resulted in substantial prejudice to
the State) are related. The Court will consider these factors together.
All of movant’s medical records are maintained by the hospital, and the
State has access to these records which would have provided them with notice of
the essential facts and an opportunity to investigate (Rechenberger v Nassau
County Medical Center, 112 AD2d 150). Therefore, there is no substantial
prejudice to the State.
Movant does appear to have an alternative remedy, in that the doctors who
performed the procedure could be sued personally.
While the presence or absence of any one of the six factors is not dispositive,
(see Bay Terrace Coop. Section IV v New York State Employees’
Retirement System Policemen’s and Firemen’s Retirement System,
55 NY2d 979), the most critical factor always is the apparent merit of the
proposed claim. The movant need only establish that the proposed claim is not
patently groundless, frivolous or legally defective and there is reasonable
cause to believe that a valid cause of action exists (Matter of Santana v New
York State Thruway Auth., 92 Misc 2d 1). If a movant cannot meet this low
threshold and the claim is patently without merit it would be meaningless and
futile for the Court to grant the application even if all the other factors in
Court of Claims Act §10(6) weighed in favor of the movant’s
The Court is satisfied that the claim is meritorious. Movant’s medical
records which are attached to her papers indicate that the pad was left in
In conclusion, the majority of factors favor movant. Therefore, movant’s
application to file a late claim is granted. Movant shall serve and file the
proposed claim within forty-five (45) days of the filing date, as indicated by
the Clerk of the Court’s file stamp, of this decision and order in
accordance with §§10, 11 and 11-a of the Court of Claims Act. Counsel
is strongly urged to review these sections and to be mindful of the service and