This is a motion of Andrew Gressler, an infant, by his mother and natural
guardian Susan Gressler, and Susan Gressler and Frank Gressler, individually
permission to file a late claim pursuant to Court of Claims Act
. 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
(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.
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
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
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
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.