This is a motion by Judith A. Campbell (hereinafter “movant”), as
Administratrix of the Goods, Chattels and Credits which were of James R.
Campbell, Deceased (hereinafter “decedent”) to renew a motion
pursuant to CPLR 2221
previously decided by
this Court by a decision and order filed on September 6, 2005 (M-70093). As
previously noted in the Court’s prior decision, the case relates to an
alleged medical malpractice occurring on November 10, 2004. The alleged acts of
malpractice occurred at University Hospital at Stony Brook, New York.
By her previous motion, movant sought permission to file a late claim pursuant
to Court of Claims Act §10(6). The motion was denied. This 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.
Rather than consider the motion as one to renew, the Court will consider the
motion as a motion to file a late claim pursuant to Court of Claims Act
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 claim has merit.
To review, the Court has found that movant had no excuse for her lateness; it
was unclear as to whether claimant had an alternate remedy; 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
Movant submits a physician’s Affirmation with the present motion. The
Affirmation supports movant’s allegation of medical malpractice.
The Court is satisfied that the claim is meritorious. Movant has supplied an
Affirmation of a doctor which opines that defendant has departed from good and
accepted medical practices.
In conclusion, the majority of factors favor movant. Therefore, movant’s
application to file a late claim is granted. Movant 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