Movant alleges that care he received for allergic disorders which caused skin
rashes and other complications was substandard.
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.
Movant attributes his delay in filing to his lack of knowledge of legal
recourse and his limited ability to confer with counsel.
Movant’s delay in timely serving and filing a claim or serving a notice
of intention are attributable to ignorance. The 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 defendant, 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 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, he must include a physician’s affidavit in support of
his 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). A
physician’s affidavit has not been included 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).