New York State Court of Claims

New York State Court of Claims

ANTINORA v. THE STATE OF NEW YORK, #2005-033-155, Claim No. None, Motion No. M-70239


Synopsis



Case Information

UID:
2005-033-155
Claimant(s):
KELLI ANTINORA and JOHN ANTINORA
Claimant short name:
ANTINORA
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK1 1.The Court sua sponte amends the caption to read The State of New York as the only Defendant.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-70239
Cross-motion number(s):

Judge:
James J. Lack
Claimant’s attorney:
Levine & GrossmanBy: Mary-Rita Wallace, 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 21, 2005
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This claim is brought by Kelli Antinora (hereinafter "movant") and John Antinora[2] due to the alleged medical malpractice of the defendant, the State of New York (hereinafter “State”). The alleged malpractice occurred between June 12, 2003 and January 6, 2005.

Movant was a patient of Dr. David Garry of University Associates in OB-GYN, P.C. Beginning in June 2003, movant began treating with Dr. Garry. One of movant’s complaints was a hardness in her right breast. In regard to the hardness, the doctor opted to monitor the breast without any testing. This pattern continued until January 6, 2005, when movant was referred for a mammogram. The mammogram showed evidence of breast cancer and a CT scan showed metastatic liver disease.

Movant was seen by Dr. Garry at his office at 205 N. Belle Meade Road, East Setauket, New York and at Stony Brook University Hospital, Stony Brook, New York.

Movant seeks permission to file a late claim against the State of New York pursuant to Court of Claims Act §10(6)[3].

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 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 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 to be 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).

As an excuse, movant argues that she has been seeking medical treatment and more concerned with her well being than in worrying about a possible claim.

In opposition, defendant states that movant’s delay is inexcusable. Movant’s contention that she was seeking medical treatment is not supported by a physician’s affidavit.

The Court finds that movant’s excuse is not meritorious. Movant supports her condition by supplying the diagnostic records (movant’s Exhibits B and C). However, these records do not show that she was engaged in seeking or receiving treatment, or that she was incapacitated for the period during which she could have filed and served a claim or served a notice of intention (Goldstein v State of New York, 75 AD2d 613).

It appears that movant has an alternate remedy, that being the ability to sue Dr. Garry directly and the group that he belonged to and identified by movant. 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.
Movant has attached medical records to show defendant had notice of the essential facts constituting the claim (movant’s Exhibit A). Some of the records have a logo from defendant’s hospital and some of the records are from Dr. Garry’s private corporation. It is unclear where the records were obtained from. The Court will assume that defendant was in possession of records which contain its logo, but not the records, including test results, which are clearly marked by Dr. Garry’s private corporation. According to movant, she was a private patient of Dr. Garry’s private corporation. She states in her papers that she saw Dr. Garry at his private office and in the defendant’s hospital. Movant makes no mention of any of defendant’s employees interacting with her and fails to show that Dr. Garry has any employment status at defendant’s hospital. Movant shows no nexus between the maintenance of a portion of Dr. Garry’s records and defendant. Therefore, there is no support that defendant had notice of the essential facts constituting the claim as to defendant itself (Fallon v County of Westchester, 184 AD2d 510). Thus, defendant also has not had a timely opportunity to investigate this matter and would be substantially prejudiced. Accordingly, these three factors do not 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 the Court of Claims Act § 10(6) weighed in favor of the movant’s request. The Court, based on movant’s papers and exhibits, including the affidavit of an expert detailing the departure from good and accepted medical practice, does believe that there is an appearance of merit as to a cause of action against Dr. Garry and his private corporation. However, there is no showing that Dr. Garry was an employee of defendant nor that any of defendant’s employees had contact with movant.

The Court is aware, through its experience with other cases, that doctors often wear different hats at Stony Brook University Hospital (i.e. professor, attending physician, on-call doctor). Attending doctors also keep office space in the hospital as well as in buildings in the local area. The doctors come into contact with their patients both in the hospital office and in their private office. In the instant case, the relationship between movant and Dr. Garry is unknown to the Court. Movant’s papers lack any allegations as to Dr. Garry’s status, how movant first met Dr. Garry, or, whether Dr. Garry ever taught residents and/or interns while examining movant.

Based on the foregoing, the Court concludes that the statutory factors do not favor movant’s application and therefore, denies permission to file a late claim. Movant is still within the statutory time to move for a late claim upon proper papers.


December 21, 2005
Hauppauge, New York

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




[2].The case of John Antinora is derivative in nature.
[3].The following papers have been read and considered on movants’ motion: Notice of Motion dated May 31, 2005 and filed June 3, 2005; Affirmation in Support of Mary-Rita Wallace, Esq. with annexed Exhibits A-D dated May 31, 2005 and filed June 3, 2005; Affidavit of Kelli Antinora sworn to May 17, 2005 and filed June 3, 2005; Affirmation in Opposition to Motion to File Late Notice of Intention or Claim of Ross N. Herman, Esq. with annexed Exhibits 1-3 dated July 5, 2005 and filed July 7, 2005; Reply Affirmation of Mary-Rita Wallace, Esq. with annexed Exhibit D dated August 9, 2005 and filed August 12, 2005.