New York State Court of Claims

New York State Court of Claims

KARANT/FERNANDEZ v. THE STATE OF NEW YORK, #2005-033-153, Claim No. None, Motion No. M-70461


Synopsis



Case Information

UID:
2005-033-153
Claimant(s):
MELANIE KARANT and JOSE FERNANDEZ, as Parents and Natural Guardians of HANNA FERNANDEZ, an Infant, and MELANIE KARANT and JOSE FERNANDEZ, individually
Claimant short name:
KARANT/FERNANDEZ
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-70461
Cross-motion number(s):

Judge:
James J. Lack
Claimant’s attorney:
Bruce G. Clark & Associates, P.C.By: Andrew M. Rosner, 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 19, 2005
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a motion of Hanna Fernandez, an infant by her mother and father as parents and natural guardians, Melanie Karant and Jose Fernandez, and Melanie Karant and Jose Fernandez, individually (hereinafter “movants”)[1] for permission to file a late claim pursuant to Court of Claims Act §10(6)[2], relating to alleged medical malpractice occurring on March 2, 2003, when movant Melanie Karant delivered a child at University Hospital at Stony Brook, New York (hereinafter “Stony Brook). The allegation is that the physicians in question failed to properly, timely and adequately assess the needs of the infant movant causing her to aspirate, which ultimately led to permanent brain damage and cerebral palsy.


Prior to going further, the Court will deny that portion of movants’ motion which seeks to file a late claim on behalf of Hanna Fernandez. As Hanna 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 permission (Court of Claims Act §10(5)).

The Court now turns its attention to the remaining movants.

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 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; and

(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 979).

Movants attribute the failure to timely file a claim to the fact that they were concerned with seeking treatment to correct the medical condition of the infant, but they have not included a physician’s affidavit or medical records to support the inability to timely file a claim (Goldstein v State of New York, 75 AD2d 613). Movants’ delay in timely filing or serving a claim or timely serving a notice of intention is attributable to ignorance. The ignorance of the law of is not a reasonable excuse (see Sevillia v State of New York, 91 AD2d 792).

The parents no longer have a viable alternate remedy. The statute of limitations for a medical malpractice action expired approximately one week after the instant motion was submitted (CPLR 214-a).

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.

All of the infant’s medical records are maintained by the hospital and, the State has access to these records which would have provided defendant with notice of the essential facts and an opportunity to investigate (Rechenberger v Nassau County Medical Center, 112 AD2d 150). In addition, as the infant’s claim can be filed in a timely manner, defendant would be investigating the same incident with no argument as to prejudice. Therefore, there is no substantial prejudice to the State.

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.

However, since movants are seeking permission to file a late claim in a medical malpractice action movants must include a physician’s affidavit in support of their 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). While movants have included a physician’s affirmation, the affirmation is devoid of the qualifications of the expert. To support a motion for a late claim, an expert’s affidavit must include the expert’s identity and his qualifications (Maxwell v State of New York, Ct Cl, February 19, 2003, Lebous, J., Claim No. None, Motion No. M-66101 [UID No. 2003-019-516].

In conclusion, while certain factors favor movants, the Court cannot find an appearance of merit at this time. Therefore, the Court must deny movants’ application for permission to file a late claim.




December 19, 2005
Hauppauge, New York

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




[1].The individual claims of the parents appear to be derivative in nature.
[2].The following papers have been read and considered on movants’ motion: Notice of Motion dated July 19, 2005 and filed July 25, 2005; Affidavit in Support of Motion to File Late Notice of Claim of Andrew M. Rosner, Esq. with annexed Exhibits A-H sworn to July 19, 2005 and filed July 25, 2005; Affirmation in Opposition to Motion for Leave to File Late Claim of Ross N. Herman, Esq. with annexed Exhibits A-E dated August 17, 2005 and filed August 18, 2005.