New York State Court of Claims

New York State Court of Claims

HUGHES v. THE STATE OF NEW YORK, #2005-033-146, Claim No. None, Motion No. M-70437


Synopsis



Case Information

UID:
2005-033-146
Claimant(s):
DEBORAH HUGHES, as Administratrix of the Estate of PATRICIA ANN HUGHES a/k/a PATRICIA HUGHES
Claimant short name:
HUGHES
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-70437
Cross-motion number(s):

Judge:
James J. Lack
Claimant’s attorney:
Wingate, Russotti & Shapiro, LLPBy: Jason M. Rubin, Esq.
Defendant’s attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Ross N. Herman, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 7, 2005
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This motion is brought by Deborah Hughes (hereinafter "claimant") as the Administratrix of the Estate of Patricia Ann Hughes a/k/a Patricia Hughes (hereinafter “decedent”) due to the alleged medical malpractice of the defendant, the State of New York (hereinafter “State”). The alleged malpractice occurred between July 24, 2003 and July 25, 2003, the date of decedent’s death.

Decedent was a patient at Brookhaven Memorial Hospital in Patchogue, New York on July 19, 2003 with what appeared to be a heart attack. She was transferred to University Hospital at Stony Brook, New York on July 23, 2003 and underwent a cardiac catheterization on July 24, 2003, dying the next day due to complications from the procedure.

On February 22, 2005, claimant was appointed the Administratrix of decedent’s estate. On or about March 10, 2005, claimant served defendant and filed with the Clerk of the Court, a claim for damages for wrongful death and pain and suffering.

Court of Claims Act §10(2) states that a claim for wrongful death shall be served on the attorney general and filed with the clerk of the court within 90 days of an appointment of an executor or administrator, unless within such time claimant has served a notice of intention upon the State. No controversy exists in this matter as to the timeliness of claimant’s wrongful death action. Claimant was appointed the Administratrix of decedent’s estate on February 22, 2005, and within 90 days served the defendant and filed the claim. However, a claim for conscious pain and suffering is untimely unless it is served and filed within 90 days of the date of accrual (Court of Claims Act §10(3)).

The Court turns its attention to claimant’s request to file a late claim pursuant to Court of Claims Act §10(6). Claimant seeks permission to file a late claim against the State of New York for conscious pain and suffering[1].

In determining a motion seeking permission to file a late claim, the Court must consider the following six enumerated factors listed in Court of Claims Act §10(6): (1) whether the delay in filing 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 the movant has another available remedy; and (6) whether the claim appears 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).

Claimant concedes that she does not have a reasonable excuse for the delay in filing. It appears that claimant has an alternate remedy, that being the ability to sue the individual doctor who claimant believes to be responsible. In fact, claimant has begun an action against the attending physician. The first and fifth factors disfavor the application.

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.

As the wrongful death action was timely served and filed, the State had notice of the incident, with sufficient time to investigate the matter. The Court finds no substantial prejudice to the State. Accordingly, these three factors favor the application.
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 claimant’s request. The Court, based on claimant’s papers and exhibits, including the affidavit of an expert detailing the departure from good and accepted medical practice, finds there is an appearance of merit.

Based on the foregoing, the Court concludes that the statutory factors favor claimant’s application and therefore, grants permission to file a late claim as to the conscious pain and suffering. Claimant is directed to serve the Attorney General and file the proposed claim in the Clerk’s Office within forty-five (45) days of the filing date of this decision and order in accordance with §§10, 11 and 11-a of the Court of Claims Act.


December 7, 2005
Hauppauge, New York

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




[1].The following papers have been read and considered on claimant’s motion: Notice of Motion dated July 13, 2005 and filed July 19, 2005; Attorney’s Affirmation of Jason M. Rubin, Esq. with annexed Exhibits A-E dated July 13, 2005 and filed July 19, 2005; Affirmation in Opposition to Motion to File Late Claim of Ross N. Herman, Esq. with annexed Exhibit 1 dated July 29, 2005 and filed August 1, 2005; Reply Affirmation of Jason M. Rubin, Esq. with annexed Exhibits dated August 8, 2005 and filed August 9, 2005.