This is a motion for a late claim
to Debra Slabic (hereinafter “movant”) as the result of the alleged
medical malpractice by defendant from May 31, 2001 through November 20, 2002 and
concluding with a final visit on January 22, 2004. The alleged acts of
malpractice are dental malpractice and occurred at the School of Dental Medicine
at the Health Science Center at Stony Brook, New York.
Movant now asks this Court to grant permission to file a late claim.
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
Movant attributes the delay in filing to not being aware of a problem with the
work done in her mouth, despite constant discomfort. Movant did not become
aware of a problem until her treatment on January 22, 2004. Movant filed this
motion in the Clerk’s Office on May 2, 2005. Movant offers no excuse for
the delay from January 22, 2004 to May 2, 2005. Movant’s delay in timely
filing a claim or serving a notice of intention are attributable to ignorance.
Ignorance of the law is not a reasonable excuse (see Sevillia v State
of New York, 91 AD2d 792).
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 it 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.
It is unclear as to whether movant has an alternative remedy. Defendant argues
that the work of the dental students was co-signed by faculty members.
Defendant posits that the faculty members are attending physicians who may be
sued individually. However, it seems that as faculty members, co-signing
students’ notes, these doctors were employees of defendant. The status of
the faculty is unclear.
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
Since movant is seeking permission to file a late claim in a dental malpractice
action, she must include a physician’s affidavit in support of her
application. This affidavit is necessary to establish the allegations of
deviations from accepted standards (see Jolley v State of New York, 106
Misc 2d 550; Favicchio v State of New York, 144 Misc 2d 212). Movant has
attached the requisite affidavit. Moreover, defendant does not argue against
the appearance of merit.
In conclusion, the majority of factors, including merit, 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 of this Decision and Order in accordance with §§10, 11 and 11-a
of the Court of Claims Act, and the Court’s amendment of the caption of
this Decision and Order.