This is a motion of Grace Feeney, an infant, by her mother and natural
guardian, Tracy Feeney, and Tracy Feeney, individually (hereinafter
“movants”) for permission to file a late claim pursuant to Court of
Claims Act §10(6)
, relating to an alleged
act of medical malpractice occurring during the period of June 25, 2003 until
August 30, 2003, at University Hospital and Medical Center at Stony Brook
(hereinafter “Stony Brook). The allegation is that the physicians in
question failed to properly insert and monitor a
line inserted into the infant.
Prior to going further, the Court will deny that portion of movants’
motion which seeks to file a late claim on behalf of Grace Feeney. As Grace is
an infant, an application for a late claim is unnecessary. The infant movant
may file her claim in a timely fashion without the Court’s
The Court now turns its attention to the remaining movant.
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 claim appears to be meritorious;
(5) whether the failure to file or serve a timely claim or serve a timely
notice of intention resulted in substantial prejudice to the State;
(6) whether the movant has another available remedy.
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 her failure to timely file a claim to the fact that she and
her husband were concerned with seeking treatment for their daughter and they
were unaware that anything had been wrong in the hospital. Movant avers that
the first time that she knew something had gone wrong in defendant’s care
of the infant was when she went to a neurosurgeon, Dr. Jeffrey Wisoff. In
addition, movant states that after discovery there was a further delay so that
the medical records could be obtained and reviewed by an expert.
The delay in obtaining the records and waiting for an expert review is
irrelevant as to movant’s failure to file within 90 days. According to
movant, the first time she became aware of the possible cause of action is
January 2004. This date is beyond the expiration of the 90 days from the
incident date. However, the delay in obtaining the records and getting an
expert review does explain the delay from January 2004 to March 2005, the filing
date of the instant motion.
A claimant’s physical condition can be an excuse to a late filing
(Goldstein v State of New York, 75 AD2d 613). However, the present case
does not involve the movant’s own physical condition, but the condition of
her infant daughter. In Benedict v State of New York, 281 App Div 731, a
case where the parent was unaware of the seriousness of his daughter’s
injury and then needed substantial time to investigate the matter, the court
found a reasonable excuse because the infant’s claim was timely, and
therefore, the State could not claim prejudice. However, the court limited the
father to actual expenses incurred prior to trial or which were immediately
necessary. The infant’s future expenses would be recoverable in her case.
Based upon Benedict, this Court finds movant has a reasonable excuse as
to the delay in serving and filing the claim or serving a notice of intention.
The second, third and fifth 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.
As previously stated, the infant’s claim is timely. Defendant cannot
claim prejudice, lack of notice or lack of opportunity in investigating the
infant’s claim. The instant movant’s claim is derivative in nature,
in that movant is only seeking to recover expenses. The Court finds these
factors to favor movant.
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 medical
malpractice action she must include a physician’s affidavit in support of
her application. The 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 included a physician’s affirmation in the moving papers which is a
well established requirement (see Colson v State of New York, 115 Misc 2d
402; Schreck v State of New York, 81 AD2d 882; Matter of Edwards v
State of New York, 119 Misc 2d 355,357). The affirmation supports
movant’s allegation of medical malpractice.
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.