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
for permission to file
a late claim pursuant to Court of Claims Act
, 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
(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
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
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.
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.