New York State Court of Claims

New York State Court of Claims

BECKFORD v. STATE UNIVERSITY OF NEW YORK HEALTH SCIENCE CENTER AT BROOKLYN, and their agents, servants and employees, #2005-036-503, , Motion No. M-70381


Despite deficiencies in the form of the proposed claim, Movant's motion for permission to late file is considered and granted.

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:
Steven E. North, P.C.
By: Stephen E. North, Esq. andBy: Laurence M. Deutsch, Esq., Of Counsel
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New York
By: Ross N. Herman, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 28, 2005
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is a motion for permission to file an untimely claim (Court of Claims Act § 10(6). Movant's proposed claim[1] alleges that during the period from August 9, 2004 to January 20, 2005, he received at the State University of New York Health Science Center at Brooklyn improper and inadequate medical care that caused him serious injury. He alleges that, among other things, the hospital and its staff failed to diagnose a paraspinal abscess and an infection of the abdomen and spine, failed to perform proper diagnostic studies, prescribed contraindicated medications, and failed to obtain Movant's informed consent for treatment that was provided to him.
If the apparent date on which Movant ceased to receive any treatment at Defendant hospital, i.e., January 20, 2005, is accepted as the date on which this claim accrued, this late claim motion was brought approximately six months from that date. Thus, a like action against a party other than the State 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. 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]).
In support of the motion, Movant's counsel states that his client failed to timely initiate an action in this Court because "he was not aware of the laws for filing a Notice of Claim, nor did he appreciate the issues of liability until just recently" (North affirmation, ¶ 17). As correctly noted by defense counsel, ignorance of the law is not an acceptable excuse for failing to comply with the time limitations set forth in the Court of Claims Act
(Matter of Galvin v. State of New York, 176 AD2d 1185 [3d Dept 1991], appeal denied 79 NY2d 753; Erca v. State of New York, 51 AD2d 611 [3d Dept 1976], affd on opn below 42 NY2d 854). From the facts set forth in the attorney's affirmation, however, it appears that after his treatment ceased at Defendant hospital, Movant then went to St. Vincent's Hospital, not owned by the State, and was operated on there on January 29, 2005. Hardware was placed in his back and a fusion was performed using [Movant's] rib" (North affirmation, ¶ 7). The reason for Movant's delay is more thoroughly amplified in the reply papers, with counsel stating that Movant was unaware of the alleged misdiagnosis until the January 29, 2005 surgery was performed, and he then had to both recover from the extensive surgery and participate in physical therapy (Deutsch affirmation, ¶ 46). The physician's affidavit of merit (Deutsch reply affirmation, Exhibit 1) confirms the seriousness of the surgical procedure. Where a movant is physically and/or mentally incapable of taking steps to institute an action during the applicable time period, such incapacity is an acceptable reason for delay (Wolf v. State of New York, 140 AD2d 692 [2d Dept 1988]; DeOlden v. State of New York, 91 AD2d 1057 [2d Dept 1983]; Epstein v. State of New York, 88 AD2d 967 [2d Dept 1982]). Movant first consulted with an attorney on May 10, 2005, just beyond the ninety-day period in which a timely claim could have been commenced.
Movant asserts that the State had notice of the essential facts constituting the claim because the medical treatment on which the claim is based was provided at its facility. It cannot be assumed, however, the State had actual knowledge of either the relevant facts or that it might be sued as a result of those facts merely because it owned and maintained a certain facility (
Wolf v. State of New York, supra; Turner v. State of New York, 40 AD2d 923 [3d Dept 1972]). On the other hand, ninety days (three months) notice is all that is required by law. Here, adequate notice was provided only a short while later, and any investigation that the State would conduct would rely on evidence, such as Movant's physical condition and medical records, that would not have changed or become inaccessible within the intervening period (Nyberg v. State of New York, 154 Misc 2d 199 [Ct Cl 1992]; 62A NY Jur 2d Government Tort Liability § 288 ["where the delay in filing the claim is brief, there is less likelihood that the state will be prejudiced by a late filing"]). Consequently, Defendants' opportunity to investigate the circumstances underlying the claim was impeded little if at all, and permitting the filing of an untimely claim would not result in substantial prejudice to the State.
As defense counsel notes, Movant may have an available remedy against the individual physicians who provided treatment at Defendants' facility, whether or not such physicians were State employees. This would not necessarily constitute a full remedy, however, if it develops that certain acts of negligence were carried out by other hospital staff or its service units, such as the laboratory. The existence of a partial remedy elsewhere does not prevent a party from being granted permission to bring an untimely claim in this Court (Rosenhack v. State of New York, 112 Misc 2d 967 [Ct Cl 1982]). Where, as here, the alleged negligence took place over an extended period of time and involved, one assumes, a number of different decisions by various personnel, it is difficult at this early stage to determine precisely who may be involved.
Although Movant's initial application contained little more than the proposed claim's listing of alleged acts of negligence, the reply submission contained a quite detailed physician's affidavit which succeeds in establishing that the proposed claim is not patently groundless, frivolous, or legally defective and that 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 [Ct Cl 1977]). The physician's affidavit is based on a review of Movant's actual medical records and sets forth a cogent theory of malpractice which, if proven, might lead to liability on the part of the State (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].
Taking into account the six statutorily prescribed factors, the Court finds them to weigh in favor of granting Movant's motion for permission to file a late claim, and the Court is inclined to do so. However, given that the proposed claim presently before the Court does not satisfy the requirements of section 11(b) of the Court of Claims Act (see footnote 1), granting such relief at this point would not be appropriate. Movant is therefore directed to submit to the Court and Defendant a redrafted proposed claim that is in proper form and complies with the statute within forty-five (45) days after this decision and interlocutory order is filed-stamped. If the Court determines that the redrafted proposed claim is acceptable, the Court will issue an order granting the motion and directing it be filed and served. The new return date for Motion No. M-70381 is January 11, 2006.

October 28, 2005
New York, New York

Judge of the Court of Claims

The following papers were read on Movant's motion for permission to file an untimely claim

1. Notice of Motion and Supporting Affirmation of Steven E. North, Esq., with annexed proposed claim and exhibits

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

3. Reply Affirmation of Laurence M. Deutsch, Esq., with annexed exhibits

Filed papers: None

[1] There are a number of defects in the form, and to some extent the content, of both the original proposed claim (North affirmation, Exhibit 1) and the revised proposed claim submitted in Movant's reply papers (Deutsch reply affirmation, Exhibit 2). This Court does not have jurisdiction over the entity named as Defendant in the original proposed claim. In addition, the claim's allegations are not set forth in normal fashion but, rather, as an "attached rider" to a mass-produced form; the pleading does not "consist of plain and concise statements in consecutively numbered paragraphs" with each paragraph containing a single allegation (CPLR 3014); and the proposed claim does not contain all of the information required by section 11(b) of the Court of Claims Act. On the submissions before the Court, however, there is sufficient information from which the proposed action's apparent merit can be determined.