New York State Court of Claims

New York State Court of Claims

PAPETTI v. THE STATE OF NEW YORK, #2005-033-154, Claim No. None, Motion No. M-70315


Synopsis



Case Information

UID:
2005-033-154
Claimant(s):
DEBORAH J. PAPETTI, as Executrix of the Estate of EDWIN J. PAPETTI, deceased, and DEBORAH J. PAPETTI, individually
Claimant short name:
PAPETTI
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-70315
Cross-motion number(s):

Judge:
James J. Lack
Claimant’s attorney:
Broder & ReiterBy: Jonathan C. Reiter, 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 16, 2005
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This motion is brought by Deborah J. Papetti (hereinafter "movant") as the Executrix of the Estate of Edwin J. Papetti (hereinafter “decedent”), and Deborah J. Papetti, individually, due to the alleged medical malpractice of the defendant, the State of New York (hereinafter “State”). The alleged malpractice occurred on July 12, 2003, the date of decedent’s death, at the University Hospital at Stony Brook, Stony Brook, New York (hereinafter “Stony Brook”).

Decedent was a patient at Stony Brook from May 22, 2003 to May 24, 2003 and from June 19, 2003 to July 12, 2003. On July 12, 2003, decedent was transferred from Stony Brook to Memorial Sloan Kettering Hospital, New York, New York. Decedent died several hours after being transferred. It is movant’s contention that decedent was not in stable condition when transferred, and the defendant’s malpractice in failing to treat his renal distress resulted in his death.

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 appointment of an executor or administrator, unless within such time claimant has served a notice of intention upon the State. Movant seeks permission to file a late claim pursuant to Court of Claims Act §10(6) for wrongful death and conscious pain and suffering[1]. Movant was appointed as Executrix of decedent’s Estate on February 25, 2004.

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).

Movant offers no excuse for failing to timely file a claim. Movant did not even seek counsel until September 21, 2004, long after the 90 days had passed for either conscious pain and suffering or wrongful death. Movant’s delay in timely filing or serving a claim or serving a timely notice of intention is attributable to ignorance. The ignorance of the law of movant’s attorney is not a reasonable excuse (see Sevillia v State of New York, 91 AD2d 792). This factor does not favor movant.

It appears that movant has an alternate remedy, that being the ability to sue the individual doctors who movant believes to be responsible. However, this does not appear to be a true alternate remedy, meaning a different source by which movant could seek full compensation. The allegations by movant are that decedent was treated by staff doctors in the hospital. While some of the doctors may have been attending physicians it would appear, given the circumstances, that defendant would be responsible for these doctors (Mduba v Benedictine Hospital, 52 AD2d 450). This factor seems to be neutral at best for movant.

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 decedent’s medical records are maintained by the hospital and the State has access to these records which would have provided the defendant with notice of the essential facts and an opportunity to investigate (Rechenberger v Nassau County Medical Center, 112 AD2d 150). In the present action, decedent was admitted to Stony Brook, and allegedly only being treated by defendant’s employees until the time of his transfer. The defendant was aware of the essential facts underlying this claim and had a reasonable opportunity to investigate. The Court finds that defendant will not suffer substantial prejudice if a claim were filed.

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. The Court, based on movant’s papers and exhibits finds there is an appearance of merit. In addition, the Court finds the proposed claim attached to movant’s reply papers (Exhibit A of Reply Affirmation) is sufficient.

Based on the foregoing, the Court concludes that the statutory factors favor movant’s application and therefore grants permission to file a late claim. Movant is directed to serve and file the proposed claim, pursuant to Court of Claims Act §§10, 11, and 11-a within forty-five (45) days of the filing date of this decision and order.




December 16, 2005
Hauppauge, New York

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




[1].The following papers have been read and considered on movant’s motion: Notice of Motion dated June 21, 2005 and filed June 22, 2005; Attorney’s Affirmation of Jonathan C. Reiter, Esq. with annexed Exhibits A-E dated June 10, 2005 and filed June 22, 2005; Affidavit of Deborah Papetti sworn to June 9, 2005 and filed June 22, 2005; Affirmation of Leonard Stern, M.D. dated June 8, 2005 and filed June 22, 2005; Affirmation in Opposition to Motion to File Late Claim of Ross N. Herman, Esq. with annexed Exhibits A-B dated August 10, 2005 and filed August 16, 2005; Reply Affirmation of Jonathan C. Reiter, Esq. with annexed Exhibits A-B dated June 22, 2005 and filed August 23, 2005.