New York State Court of Claims

New York State Court of Claims

URBAN v. THE STATE OF NEW YORK, #2005-036-106, Claim No. 109731, Motion Nos. M-70112, CM-70371


Motion to dismiss granted - claim filed late. Motion for permission to late file denied - claimant did not demonstrate apparent merit.

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):
Claimant’s attorney:
Salenger, Sack, Schwartz & KimmelBy: Carolyn M. Caccese, 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:
January 4, 2006
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is claimants’ motion for an order permitting them to interpose an amended claim or permitting late filing pursuant to Court of Claims Act §10(6), and defendant’s cross-motion to dismiss the claim for lack of jurisdiction. The claim alleges negligence and medical malpractice arising from claimant Tina Urban’s [1] treatment at University Hospital at SUNY Stony Brook. According to the claim, which was filed on August 16, 2004 and served on August 23, 2004, the date of claimant’s first treatment at defendant’s hospital was January 29, 2003 and her treatment was “continuing up to the present time.” In the affirmation submitted in support of claimant’s motion, her counsel states that such treatment continued “up until May of 2004.”

In its answer, defendant asserted, among other affirmative defenses, that the court lacks jurisdiction because claimants failed to serve and file their claim in accordance with the applicable time limitation set forth in Court of Claims Act §10(3); i.e. within 90 days of accrual. Defendant’s motion to dismiss is based on this ground, as well as on others, which the court need not address because defendant’s contention that the claim is untimely is correct.

The claim alleges negligence and malpractice in connection with claimant’s treatment at the University Hospital during a January 29, 2003 through February 6, 2003 admission, and at emergency room visits on unspecified dates subsequent to February 6, 2003 “and continuing up to the present time.”

The proof submitted by defendant establishes that the last day claimant was treated at defendant’s hospital was May 7, 2004. Claimant came to the emergency room complaining of syncope. Assuming the May 7, 2004 treatment, in fact, was related to the treatment that forms the basis for the malpractice claim to make the continuous treatment principle applicable – an assumption defendant does not concede and that is not clear from the submitted papers – August 5, 2004 would have been the last date for timely service and filing. In response to defense counsel’s statement that claimants “have not addressed their failure to timely serve a Notice of Intention or a Claim” (Herman Affirmation, ¶9), claimant’s counsel requested permission to file a late claim, in effect conceding that claimants had no factual response to defendant’s contentions that the last possible date of accrual was May 7, 2004, the claim was served and filed more than 90 days thereafter and, therefore, the claim must be dismissed for lack of jurisdiction.

Defendant’s contentions in this regard are correct, and since the defense was raised in the answer with the required particularity (see Court of Claims Act §11[c]) the claim must be dismissed.

With respect to claimants’ motion for permission to late file, Court of Claims Act §10(6) gives the court discretion to grant such a motion upon consideration of all relevant factors, including whether claimants’ delay in serving and filing a claim was excusable, whether defendant had timely notice of and opportunity to investigate the relevant allegations, whether defendant will suffer substantial prejudice should late filing be allowed, whether the proposed claim has the appearance of merit and whether claimants have an alternate remedy.

The submitted papers contain no indication that claimants’ delay in presenting their claim was excusable, or that defendant had notice of the relevant facts and circumstances within the statutory 90-day period. Nevertheless, defendant possesses its records of claimant’s treatment and the court finds that defendant would not suffer substantial prejudice should this motion be granted.

Claimants’ application is supported only by the affirmation of their counsel, who is without personal knowledge of claimant’s treatment or of the alleged malpractice, and thus is unable to provide any probative information to the court concerning the apparent merit of the claim. In the absence of an affidavit of a physician, there is nothing before the court from which it could be concluded the treatment afforded claimant did not meet the applicable standard of care and that there is any merit to the claim of malpractice (see Rosario v State of New York, 8 Misc 3d 1007(A); Jolley v State of New York, 106 Misc 2d 550). Claimants also have not submitted any medical records (the only records submitted were by the defendant and concerned the May 7, 2004 emergency room visit, not the dates on which the alleged malpractice occurred).

It is fundamental that “a claimant seeking the court's discretion has a greater burden than one who has timely initiated proceedings and simply files a claim” when seeking to demonstrate merit (Nyberg v State of New York, 154 Misc 2d 199). It is not enough that claimants have submitted a proposed claim that complies with §11(b) and states a cause of action. More is required on an application pursuant to §10(6). Here, claimants have not met their burden (see Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1).

Counsel’s assertion that the submission of a CPLR 3012-a certificate of merit meets claimants’ burden under §10(6) is erroneous. The court is required to make its own evaluation of merit, based on probative evidence. That counsel has spoken with a physician who has concluded there is merit to the claim is irrelevant in the absence of an affidavit from the physician setting forth the factual basis for the conclusion of malpractice.

On the question of claimants’ alternate remedy, claimants state they have brought an action in Supreme Court, presumably against a physician or physicians, arising out of the subject events (see Morell v Balasubramanian, 70 NY2d 297). Although counsel asserts claimants will not be able to obtain full recompense in that action, this assertion is unaccompanied by any factual explanation of the basis for the conclusion. The submitted papers address neither the basis for the allegations of negligence and malpractice nor the reason why they would not be fully addressed in the Supreme Court action.

On balance, the court finds it would not be a proper exercise of discretion to grant relief pursuant to §10(6) on the papers before the court.

Accordingly, defendant’s cross-motion to dismiss the claim for lack of jurisdiction arising out of claimants’ failure to comply with the time requirement of Court of Claims Act §10(3) is granted. Claimants’ motion for permission to submit an amended claim is denied as moot and the motion for permission to file a late claim is denied.

January 4, 2006
New York, New York

Judge of the Court of Claims

The court read and considered the following papers on the motion and cross-motion:
  1. Notice of Motion, Affirmation and Exhibits
  2. Claimant’s Supplemental Affirmation
  3. Notice of Cross-Motion, Affirmation and Exhibits
  4. Affirmation in Opposition

[1].The claim of Ronald Urban is for the loss of his wife’s services. Any references herein to “claimant” are to Tina Urban.