New York State Court of Claims

New York State Court of Claims

SLABIC v. THE STATE OF NEW YORK, #2005-033-139, Claim No. None, Motion No. M-70123


Synopsis



Case Information

UID:
2005-033-139
Claimant(s):
DEBRA SLABIC
Claimant short name:
SLABIC
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK1 1.The Court sua sponte amends the caption to read The State of New York as the only Defendant.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-70123
Cross-motion number(s):

Judge:
James J. Lack
Claimant’s attorney:
Ralph G. Reiser, Esq.
Defendant’s attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Ross N. Herman, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 9, 2005
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a motion for a late claim[2] for damages 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 claim;

(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 979).

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 request.

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.


September 9, 2005
Hauppauge, New York

HON. JAMES J. LACK
Judge of the Court of Claims




[2].The following papers have been read and considered on movant’s motion: Notice of Motion dated May 2, 2005 and filed May 2, 2005; Affirmation in Support of Ralph G. Reiser, Esq. with annexed Exhibits A-B dated May 2, 2005 and filed May 2, 2005; Affidavit in Support of Debra Slabic sworn to April 29, 2005 and filed May 2, 2005; Affirmation in Support of Dr. Leon Melideo dated April 28, 2005 and filed May 2, 2005; Affirmation in Opposition to Motion to File Late Claim of Ross N. Herman, Esq. dated June 13, 2005 and filed June 15, 2005; Reply Affirmation of Ralph G. Reiser, Esq. dated July 12, 2005 and filed July 13, 2005.