New York State Court of Claims

New York State Court of Claims

PERALTA v. THE STATE OF NEW YORK, #2005-036-100, , Motion No. M-70200


Case Information

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):

Melvin L. Schweitzer
Claimant's attorney:
Ronemus & VilenskyBy: Lori K. Sapir, Esq.
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New York
By: Ross N. Herman Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 6, 2005
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is a motion to file a late claim for medical malpractice in the Court of Claims.
Movant's proposed claim alleges that in June 2004,[1] she received medical treatment for an eye condition at Ezra Medical Center which, it is alleged, is owned and operated by the State University of New York College of Optometry. The proposed claim states that the treatment was administered by non-parties Dr. Alana Gelfand, Dr. Stacy Friedman, and Dr. Daniella Rutner. Each of these physicians is also alleged to be an "employee, servant and/or agent of the State" (proposed claim, ¶¶ 6-13). The basis for the claim against the State, it is alleged
That at all times herein mentioned, the medical, nursing and optometric services rendered by the respondent, its agents, servant [sic] and/or employees was negligent and constituted medical, nursing, and optometric malpractice in that the respondent failed to properly treat the claimant for her eye condition; failed to properly perform eye examinations [and] dilated claimants [sic] eye when then [sic] should not have; failed to provide the claimant with proper informed consent and was otherwise negligent in the rendering of medical and optometric care and treatment to the claimant.
(Id, ¶ 17). The proposed claim does not describe Movant's injuries. Her counsel's affirmation indicates that she was required to undergo several surgical procedures and states that she "has sustained blindness and loss of vision" (Sapir affirmation, 4th ¶).
This motion was brought eleven months after the proposed claim arose; a like action against a citizen would not be barred by the applicable statute of limitations (CPLR 214-a). In determining a motion for permission to file a late claim, the Court must consider, among
other relevant factors, the six factors set forth in subdivision 6 of section 10 of the Court of Claims Act: 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. 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 Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979 [1982]).

Movant failed to initiate a timely action in this Court because neither she nor her counsel knew, within the applicable ninety-day time period (Court of Claims Act § 10 [3]), that there was or could have been State involvement. Failure to identify the proper defendant, or the proper court in which to bring suit, is generally viewed as the result of either ignorance of the law or law office failure, neither of which is an acceptable excuse for delay (Matter of Galvin v. State of New York, 176 AD2d 1185 [3d Dept 1991], lv denied 79 NY2d 753; Erca v. State of New York, 51 AD2d 611 [3d Dept 1976], affd on opn below 42 NY2d 854; Sevillia v. State of New York, 91 AD2d 792 [3d Dept 1982]). Where, however, the delay was caused by a reasonable mistake of fact, rather than a mistake of law, courts have given consideration to the specific circumstances presented, such as whether the mistake was reasonable, whether the injured party acted promptly upon learning of the mistake, and the extent to which the defendant would be prejudiced by any delay (Richeson v. State of New York, 98 AD2d 656 [1st Dept 1983), appeal dismissed 63 NY2d 650; see also, Weaver v. State of New York, 112 AD2d 416 [2d Dept 1985]).
The reasonableness of a movant's mistake of fact was considered in Erca v. State of New York, supra, Richeson, supra, and Weaver, supra. In the first case, the movant's counsel "inadvertently" believed the Tappan Zee Bridge was a State roadway and thus failed to commence a timely action against the New York State Thruway Authority. This inadvertence, the Third Department held, did not constitute a reasonable excuse for delay, presumably because ownership of the Tappan Zee Bridge could be easily determined. In Richeson, the injury occurred in connection with a construction project on a New York City street (Ninth Avenue near 28th Street). An action was commenced against the City, but it was later learned that the construction project had actually been under the direction of the State. The trial court held this mistake was reasonable and the delay was excused; the appellate court, however, appears to have questioned that conclusion, although its actual determination was predicated on other factors (98 AD2d 656)
. In Weaver, the movant mistakenly sued Westchester County in connection with an accident that occurred on the Cross County Parkway after he was "assured by personnel in the Westchester County Attorney's office that the county owned the Cross County Parkway". The Second Department held that in those circumstances the resultant delay in suing the State was excusable, because the attorney had proceeded diligently in bringing an action; his mistake was the result of reasonably based reliance on assurances by County personnel; and he moved for leave to file a late claim as soon as the mistake was discovered (112 AD2d at 418).

Regarding whether the delay here was excusable, Movant's counsel had no knowledge of the State's possible involvement until after the Supreme Court action was commenced and the physicians' representative turned out to be the Attorney General. Before that time, there was nothing that pointed to Ezra Medical Center as having any affiliation with the State or to the physicians being in some fashion State employees

Regarding notice to the State and an opportunity to investigate, the Supreme Court actions against the three physicians were instituted promptly, within the 90-day period in which a timely action would have to be commenced in this Court. Because the Attorney General's office is representing the physicians in Supreme Court, the State has had all the notice to which it is statutorily entitled (see, Nyberg v. State of New York, 154 Misc 2d 199 [Ct Cl 1992]). Consequently, there has been no interference with the State's opportunity to investigate the circumstances underlying the claim, and the State would not be prejudiced if the requested relief is granted (Crawford v. City Univ. of New York, 131 Misc 2d 1013, 1016 [Ct Cl 1986]).
Addressing, next, whether Movant has another available remedy, defense counsel asserts that because Movant has commenced the Supreme Court actions against the individual doctors, she "obviously" has an alternative remedy that would make permitting a Court of Claims action "an unnecessary expense of judicial resources" (Herman affirmation, ¶ 5). Where the allegations of negligence contained in a proposed late claim address conduct that is identical to the allegations of wrongdoing contained in a Supreme Court complaint, it has been held that permission to late file should be denied as the result would be "two identical actions pending in two different courts" (Charles v. State of New York (8 Misc 3d 1007(A) [Ct Cl 2005]; see also Bonaventure v. New York State Thruway Authority, 114 AD2d 674, 675 [3d Dept 1985], affd 67 NY2d 811 [1986]
; Berry v. State of New York
, 115 AD2d 153, 154 [3d Dept 1985]).

The relevant language of the proposed claim (quoted above) could be interpreted to implicate not only the named physicians but others, such as nurses or support staff, or other factors (see, e.g., Carter v. State of New York, 284 AD2d 810 [3d Dept 2001] [allegations that improper medication was dispensed]).
On the other hand, statements made by Movant's counsel appear to supply the missing information and to suggest strongly that the basis of this proposed action is the same as that on which the Supreme Court actions are founded. In the affirmation in support of the motion, it is asserted that Movant "was administered eye drops without having first been properly examined," which led to the burning sensation in her eyes (Sapir affirmation, 2nd ¶); that the drops should not have been administered because she was experiencing hypertension and glaucoma; and that the malpractice committed by Defendant State of New York was "failing to properly perform an eye exam, failing to test the pressure in the plaintiff's [sic] eye and improperly administering treatment to the claimant (id., 3rd ¶). Counsel further states that the Attorney General's office has had all information concerning the proposed claim "as they are defending the individually named doctors in the Supreme Court case" and "[a]ccordingly, the State has investigated the claim . . . ." (id., 11th ¶ [emphasis supplied]). Finally, counsel reports the result when a medical expert was asked to review the records in this case: "Said expert believes that had a proper eye test been performed, the doctors would have realized that claimant was experiencing hypertension and eye drops should never have been administered" (id., 12th ¶). Similarly, in the reply affirmation submitted in support of this motion, the alleged malpractice is described as follows: "drops were improperly administered where the claimant was experiencing hypertension and glaucoma" (Sapir reply affirmation, 2nd ¶). The expert's opinion is also restated: "Said expert believes that had a proper eye test been performed, the doctors would have realized that the claimant was experiencing hypertension, and those eye drops would not have been administered" (id, 3rd ¶).
The issue of whether Movant has an alternative remedy was not addressed by her counsel in the initial affirmation but was discussed in the reply affirmation. Counsel states that permitting the proposed claim to be filed would not result in an unnecessary expense of judicial resources for the following reasons: "Defense counsel will be representing the defendants in both the State action and the Court of Claims action. All discovery will essentially be the same, and it will be conducted once" (id, 4th ¶). The Court is constrained to note that while identical issues and discovery may not strain the resources of the parties or their representatives, allowing a second identical (and, therefore, unnecessary) action to be commenced as a late claim is certainly wasteful of the resources of the judicial system. The Court must also conclude, on the basis of all statements about the proposed claim made by Movant's counsel, that the sole basis for the proposed Court of Claims action would be alleged medical negligence on the part of the three physicians, defendants in the Supreme Court actions, in electing to give Movant eye drops despite her other physical problems. While it is possible to have causes of action against the State, or a private hospital, that are separate and distinct from causes of action predicated upon a physician's malpractice, from the submissions now before the Court, this does not appear
to be such a case.

Regarding the apparent merit of the proposed claim, defense counsel contends that this factor is not established because Movant has failed to submit the affidavit of a medical expert stating his or her opinion that there was a deviation from accepted medical standards in the treatment provided to Movant and setting forth the facts that establish such a deviation (Herman affirmation, ¶ 3). As a general rule, on late claim motions asserting causes of action for medical malpractice or other technical negligence, this Court will require that the moving papers be supported by an affidavit from an expert. Indeed, it has been held on a number of occasions that such affidavits of merit are necessary when a proposed claim is based on allegations of medical or other specialized wrongdoing, (see, e.g., Tatta v. State of New York, 19 AD3d 817 [3d Dept 2005]; Klinger v. State of New York, 213 AD2d 378 [2d Dept 1995]; Schreck v. State of New York, 81 AD2d 882 [
2d Dept 1981]).
In isolated cases, the injured party's medical records may provide all the needed information (DePaolo v. State of New York, 99 AD2d 762 [2d Dept 1984]). Here, however, despite the assertions of Movant's counsel (Sapir reply affirmation, 2nd ¶), the medical records submitted in support of this motion (Sapir affirmation, Exhibit A) do not contain information from which a reasonably educated layperson could draw any logical connection between the treatment provided (or withheld) and the subsequent injury. In fact, the records do not clearly outline either the nature of the treatment that was administered or the condition of Movant's vision at the conclusion of that treatment.
It is also possible, in some unique situations, for the apparent merit of a proposed malpractice claim to be established without relying on either an expert affidavit or complete medical records. These are situations where the doctrine of res ipsa loquitur would be applicable, and this doctrine may be relied upon in appropriate medical malpractice actions (see, e.g., Kambat v St. Francis Hosp., 89 NY2d 489 [1997] [foreign object left in a patient's abdomen]; Fogal v. Genesee Hospital, 41 AD2d 468 [4th Dept 1973] [frostbite caused by a chilled blanket used during a routine surgical procedure required amputation of patient's limbs]; see also, Coursen v. New York Hospital-Cornell Med. Center, 114 AD2d 254 [1st Dept 1986] and cases cited therein). Reliance on the doctrine of res ipsa loquitur is possible, however, only where the relationship between the physician's actions and the resultant injury is "easily discernible," based on common knowledge (id, at 256). Here, the relationship at issue between the treatment provided and the patient's subsequent "blindness and loss of vision," does not fall within this category as it is not possible for the trier of fact to "draw upon past experience common to the community for the conclusion that the adverse event generally would not occur absent negligent conduct" (Kambat, supra, at 495).
Counsel for Movant explains the absence of an expert affidavit in the following fashion:
[Movant] has not attached a physician Affidavit at this time due to conflicting disclosure rules with the State [sic] Court case. Defense counsel, who represents the individually named doctors in State [sic] Court, is not entitled to such expert information in State [sic] Court. Accordingly, should [movant] provide this information to this Court, defense counsel will then have this information in the State [sic] Court action.
(Sapir reply affirmation, 3rd ¶) Although she does not identify the source of the conflict, she presumably is referencing the provision in CPLR 3101(d) that permits parties in actions alleging medical, dental or podiatric malpractice to withhold the name of the expert who submits the discovery response and who, most likely, will testify at trial. In an effort to establish the proposed claim's merit in an alternative fashion, Movant's counsel has provided the Court with the same information that must accompany a timely filed pleading in all malpractice actions: a statement by the attorney that he or she has reviewed the facts of the case and consulted with at least one physician who the attorney believes to be reasonably knowledgeable about the relevant facts and has concluded, on the basis of such review and consultation, that there is a reasonable basis for the action to be commenced (CPLR 3012-a ).
A CPLR 3012-a certificate of merit may not substitute for the showing of apparent merit required in connection with a late claim application pursuant to Court of Claims Act § 10 (6). In
Parks v. State of New York
(#2003-018-250, Motion No. M-66849 [September 4, 2003], Fitzpatrick, J.), a CPLR 3012-a certificate of merit was submitted in support of a late claim application, and it was held to be inadequate.
Unfortunately this is not sufficient to allow the Court to evaluate the potential validity of the proposed claim. What is needed is an affidavit from a physician with the requisite expertise setting forth the specific facts which evidence a deviation from the standard of care, causally linked to the injuries suffered
(See also, Maxwell v. State of New York, #2003-019-516, Motion No. M-66101
[February 19, 2003], Lebous, J. ["
Counsel has confused a certificate of merit under CPLR 3012-a with the expert affidavit required on a motion to late file a medical malpractice claim."]; Tortorici v. State of New York #2001-019-580, Claim No. 104703, Motion Nos. M-64067, CM-64227 [December 21, 2001], Lebous, J.).

Because Movant has failed to provide the necessary medical affidavit and because all information about the precise nature of the proposed claim now before the Court indicates that it is nothing more than a duplication of the actions already underway in Supreme Court, the Court exercises its discretion to deny the motion to file a late claim. This denial is without prejudice to Movant's right to commence a new motion for the same relief, on appropriate papers, if it is filed within 60 days of the date this decision is file-stamped and if it contains (i) the affidavit of a medical expert[2] establishing the apparent merit of the proposed claim, (ii) an explanation as to why an action in this Court would not be an unnecessary duplication of the actions already commenced in Supreme Court, and (iii) a proposed claim that conforms in all respects with the pleading requirements of section 11 (b) of the Court of Claims Act (see, footnote 1).

Movant's motion is denied.

September 6, 2005
New York, New York

Judge of the Court of Claims

The Court has read and considered the following papers in connection with this motion:

1. Notice of Motion and Supporting Affidavit of Lori K. Sapir, Esq. with annexed proposed claim and exhibit

2. Affirmation in Opposition of Ross N. Herman, Esq., AAG, with annexed exhibits.

3. Reply Affirmation of Lori K. Sapir, Esq.

Filed papers: None

[1] The attorney's affirmation submitted in support of the motion indicates that the complained of treatment occurred on June 21, 2004 (Sapir affirmation, 2nd ¶). As noted by defense counsel (Herman affirmation, ¶¶ 10-13), the proposed claim also omits other information that is required by section 11 (b) of the Court of Claims Act, such as "(4) the items of damage or injuries claimed to have been sustained and (5) the total sum claimed." In the interest of judicial economy, however, the Court will consider the motion on its merits.
[2] The expert's name may be redacted in the copy furnished to Defendant, and the complete affidavit, including the name, can be reviewed by the Court in camera.