New York State Court of Claims

New York State Court of Claims

GRESSLER v. THE STATE OF NEW YORK, #2005-033-161, Claim No. None, Motion No. M-70589


Case Information

ANDREW GRESSLER, an infant by his mother and natural guardian, SUSAN GRESSLER, SUSAN GRESSLER, Individually and FRANK GRESSLER, Individually
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

James J. Lack
Claimant’s attorney:
Dinkes & SchwitzerBy: Elena Carter, 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

Official citation:

Appellate results:

See also (multicaptioned case)


This is a motion of Andrew Gressler, an infant, by his mother and natural guardian Susan Gressler, and Susan Gressler and Frank Gressler, individually (hereinafter “movants”)[1] for permission to file a late claim pursuant to Court of Claims Act §10(6)[2]. The Court has previously decided two motions (M-68619 filed October 12, 2004 and M-69614 filed June 29, 2005) by movants relating to an alleged medical malpractice occurring on October 29, 2003, when movant 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 movant and infant movant, as well as failing to properly manage movant’s labor and improperly performing a cesarean section.

By the previous motions, movant sought permission to file a late claim pursuant to Court of Claims Act §10(6). The motions were denied. In M-68619, the Court found that movant failed to show a meritorious cause of action. Movant’s cause of action is for medical malpractice. The Court determined that a physician’s Affidavit was necessary for movant to show a meritorious cause of action and movant’s papers did not include an Affidavit. In M-69614, movant supplied a physician’s Affidavit, but failed to identify the physician or the physician’s qualifications.

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.

In the prior decision, this Court made determinations as to these factors. The Court will not go through each of these factors again since the only aspect to change from movant’s initial motion is the inclusion of a physician’s Affirmation to show that movant’s claim has merit.

To review, the Court has found that movant had no excuse for her lateness. It appears that movant has a timely alternate remedy in Supreme Court against the attending physician, defendant had notice of the essential facts and an opportunity to investigate, and 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.

Movant submits a physician’s Affirmation with the present motion. The Affirmation supports movant’s allegation of medical malpractice.

Defendant opposes the motion and argues the physician’s Affirmation should be disregarded because the physician has had approximately eleven cases of medical malpractice against him. One of the cases was tried and a judgment was awarded against him and the other cases were settled.

Movant has included a sufficient physician’s Affirmation in support of her application. The Affirmation 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). The doctor has been licensed since 1977. The actions defendant complains of took place between February 1998 and January 2003. The Court does not find an application for a late claim to be the appropriate vehicle to weigh the expert’s credibility.

The State asserts that the proposed claim does not contain language sufficient to distinguish it from a notice of intention. The Court also notes that the proposed claim does not contain a schedule of damages pursuant to §206.6 of the Uniform Rules for the Court of Claims. The Court finds the claim, as drafted, satisfies the pleading requirements.

In conclusion, the majority of factors favor movants. Therefore, movants’ application to file a late claim is granted. Movants shall serve and file the proposed claim within forty-five (45) days of the filing date of this decision and order in accordance with §§10, 11 and 11-a of the Court of Claims Act.

December 21, 2005
Hauppauge, New York

Judge of the Court of Claims

[1].All references to movant shall be to Susan Gressler since the claim of Frank Gressler is derivative.
[2].The following papers have been read and considered on movants’ motion: Notice of Motion dated August 8, 2005 and filed August 19, 2005; Affirmation in Support of Elena Carter, Esq. with annexed Exhibits A-E dated August 8, 2005 and filed August 19, 2005; Affirmation in Opposition of Ross N. Herman, Esq. with annexed Exhibit A dated September 21, 2005 and filed September 22, 2005; Reply Affirmation of Elena Carter, Esq. with annexed Exhibit C dated September 23, 2005 and filed September 26, 2005.