New York State Court of Claims

New York State Court of Claims

HAEG v. THE STATE OF NEW YORK, #2005-033-159, Claim No. None, Motion No. M-70654


Synopsis



Case Information

UID:
2005-033-159
Claimant(s):
KIMBERLY HAEG
Claimant short name:
HAEG
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-70654
Cross-motion number(s):

Judge:
James J. Lack
Claimant’s attorney:
Podlofsky & OrangeBy: Ira C. Podlofsky, Esq.
Defendant’s attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Ross N. Herman, Assistant Attorney Genreal
Third-party defendant’s attorney:

Signature date:
December 21, 2005
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a motion of Kimberly Haeg (hereinafter “movant”) for permission to file a late claim[1] pursuant to Court of Claims Act §10(6), relating to alleged medical malpractice occurring on April 22, 2004, when movant was a patient 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 stabilize movant’s cervical column and assess and investigate the injuries to the cervical column.


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.

Prior to discussing the factors in regard to this case, the Court notes that movant was granted permission to file a late claim (M-69164 filed June 1, 2005) in regard to a highway negligence case which occurred on April 21, 2004. Movant’s application in that matter was brought by another law firm. The papers filed in support of the motion included an affidavit from a doctor explaining movant’s condition, as well as her ability to understand. Such an affidavit is not present in the instant case. The papers presented in support of the application are lacking in explanations.

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 attributes her failure to timely file a claim to the fact that she was concerned with seeking treatment to correct her medical condition, but has not included a physician’s affidavit or medical records to support her inability to timely file a claim (Goldstein v State of New York, 75 AD2d 613). As mentioned above, movant presented such an affidavit in her other motion. However, this motion is unsupported by such an affidavit. The Court is also aware that the Assistant Attorney General handling this matter is different then the prior matter as the case involves medical malpractice.[2]

Movant may have an alternate remedy in Supreme Court against the individual physicians.

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 movant’s medical records are maintained by Stony Brook 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). 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.

As movant is seeking permission to file a late claim in a medical malpractice action she must include a physician’s affidavit in support of her 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). Movant has not included a physician’s affidavit in the moving papers which is a well established requirement (see Colson v State of New York, 115 Misc 2d 402; Schreck v State of New York, 81 AD2d 882; Matter of Edwards v State of New York, 119 Misc 2d 355, 357).

The defendant asserts that the proposed claim is not sufficient for a variety of reasons. The Court, in fact, finds the claim to be inartfully drafted and fails to meet the pleading requirements of §11 of the Court of Claims Act.

In conclusion, while certain factors favor movant, the Court cannot find an appearance of merit at this time. Since a physician’s affidavit was not submitted, the application is legally defective. Therefore, the Court must deny movant’s application for permission to file a late claim. Movant has the opportunity in a timely manner to properly resubmit the motion to repair the defect.





December 21, 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 August 18, 2005 and filed August 30, 2005; Affirmation in Support of Ira C. Podlofsky, Esq. with annexed Exhibits A-D dated August 18, 2005 and filed August 30, 2005; Affirmation in Opposition to Motion to File Late Claim of Ross N. Herman, Esq. with annexed Exhibits A-C dated September 21, 2005 and filed September 22, 2005.
[2].The Court is aware that the Attorney General’s Office structure divides medical malpractice cases from highway negligence cases in the New York District.