New York State Court of Claims

New York State Court of Claims

KELLY v. THE STATE OF NEW YORK, #2005-033-140, Claim No. None, Motion No. M-70274


Synopsis



Case Information

UID:
2005-033-140
Claimant(s):
MARIANNE KELLY, as Administratrix of the Estate of MARLENE URBAN, Deceased
Claimant short name:
KELLY
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-70274
Cross-motion number(s):

Judge:
James J. Lack
Claimant’s attorney:
Pearlman, Apat & FuttermanBy: Martin M. Seinfeld, 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 13, 2005
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This claim is brought by Marianne Kelly (hereinafter "movant") as the Administratrix of the Estate of Marlene Urban (hereinafter “decedent”) due to the alleged medical malpractice of the defendant, the State of New York (hereinafter “State”). The alleged malpractice occurred between March 7, 2004 and March 19, 2004, the date of decedent’s death.
Decedent was a patient at University Hospital and Medical Center at Stony Brook and died due to defendant's failure to diagnose and treat an abdominal infection known as C-Difficile colitis. After decedent's passing, movant retained counsel and was appointed on June 18, 2004 as Administratrix of the Estate. Movant's counsel failed to serve and file a claim or serve a notice of intention within 90 days of the appointment of movant as Administratrix. Movant eventually retained present counsel who asks this Court for permission to file a late claim pursuant to Court of Claims Act §10(6)[1].

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.


Movant attributes her delay in filing to her first attorney's neglect.

Movant’s delay in timely serving and filing a claim or serving a notice of intention are attributable to law office failure and/or ignorance. The ignorance of the law of movant’s attorney 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.

While the presence or absence of any one factor 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 is the apparent merit of the proposed claim. A 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 (see 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 the 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 medical 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). In the instant action, movant has included an affirmation of an expert which details the allegations of deviations from accepted medical standards. The Court, based on movant’s papers and exhibits finds there is an appearance of merit.

In conclusion, the majority of the factors favor movant. The Court grants movant’s application to file a late claim pursuant to Court of Claims Act §10(6). 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 CPLR 3012-a.


September 13, 2005
Hauppauge, New York

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




[1].The following papers have been read and considered on movant’s motion: Notice of Motion dated May 4, 2005 and filed June 13, 2005; Affidavit in Support of Marianne Kelly with annexed Exhibits A-C sworn to May 10, 2005 and filed June 13, 2005; Affirmation in Support of Martin M. Seinfeld, Esq. with annexed Exhibits D-E dated May 4, 2005 and filed June 13, 2005; Affirmation in Opposition to Motion to File Late Claim of Ross N. Herman, Esq. with annexed Exhibits 1-4 dated June 28, 2005 and filed June 29, 2005; Reply Affirmation of Martin M. Seinfeld, Esq. with annexed Exhibit A dated July 18, 2005 and filed July 22, 2005.