Notice of Motion, Attorney Affirmation, with Exhibit (Proposed Claim) 1,2
Claimant’s Affidavit (Elissa Brown) 3
Memorandum of Law in Support 4
In their proposed claim, claimants allege medical malpractice against the
physicians and nursing staff at the State University of New York Health Science
Center at Syracuse, New York (Upstate) in connection with medical treatment
provided to their infant son, Joshua, between May 26, 2004 and July 8,
In a Decision and Order dated May 8, 2006
this Court denied a similar application by claimants, without prejudice, finding
that late claim relief was not necessary for any claim asserted on behalf of
infant Joshua Brown, since he was (and still is) an infant and therefore under a
legal disability as defined in CPLR § 208. This Court also found that
Joshua’s parents, Elissa Brown and Karl Brown, had not asserted any
individual cause of action in the proposed claim.
Claimants have now made a second application for late claim relief, and in the
proposed claim submitted with this application, Elissa and Karl Brown have
alleged their own derivative cause of action, in addition to the cause of
action for medical malpractice asserted on behalf of their son Joshua.
No opposition has been submitted on behalf of the defendant.
As with their original application, the infancy of Joshua Brown tolls all
limitation periods, and therefore permission to file a late claim on his behalf
is unnecessary, as long as the filing of the claim is made no later than two
years following the removal of the disability (see Boland v State of New
York, 30 NY2d 337; Leibowitz v State of New York, 82 Misc 2d 424;
Court of Claims Act § 10).
The Court, however, must still address the late claim application of Elissa and
Karl Brown, for their derivative cause of action.
In order to determine an application for permission to serve and file a late
claim, the Court must consider, among other relevant factors, the six factors
set forth in § 10(6) of the Court of Claims Act. The factors set forth
therein are: (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 meritorious; (5) whether substantial
prejudice resulted from the failure to timely file and the failure to serve upon
the Attorney General a timely claim or notice of intention to file a claim; and
(6) whether any other remedy is available. The Court is afforded considerable
discretion in determining whether to permit the late filing of a claim (see
Matter of Gavigan v State of New York, 176 AD2d 1117).
The excuse advanced for failure to timely file a claim is that Elissa and Karl
Brown were both unaware of the 90 day filing period for claims against the
State, and that during such period of time they were primarily concerned with
providing care and treatment for their infant son Joshua. Ignorance of the law,
however, is not an acceptable excuse (Matter of E.K. v State of New York,
235 AD2d 540) and parental preoccupation with the health and welfare of an
injured child, although understandable and laudable, is not considered a
reasonable excuse for the late filing of a derivative claim (see Porreca v
State of New York, 28 Misc 2d 1098). The Court therefore finds that
claimants have not provided an acceptable reason for their failure to timely
serve and file their claim.
The factors of notice, opportunity to investigate, and substantial prejudice
will be considered together. In her affidavit, claimant Elissa Brown states
that during the time that Joshua was being treated at Upstate, she filed two
complaints with Upstate, and subsequently, in September of 2004, she filed a
complaint with the State Department of Health, all pertaining to the treatment
provided to her son during his course of care. As a result of the complaint
filed with the Department of Health, that department conducted an investigation
and issued a report in May, 2005.
Since these various complaints apparently relate to the same medical care and
treatment of her son which provides the basis of the proposed claim, the Court
finds that the State had notice of the essential facts constituting this claim,
and as such had knowledge that these complaints could ultimately lead to a claim
against the State. Furthermore, not only did the State have a sufficient
opportunity to conduct an investigation of the circumstances surrounding this
claim, the Department of Health did in fact conduct such an investigation.
Based on the foregoing, and also taking into consideration the fact that the
State must provide a defense to the claim of infant Joshua Brown in any event,
the Court finds that the State would not be substantially prejudiced should it
be obligated to defend the derivative claim of Elissa and Karl Brown.
The next factor, often deemed the most critical, is whether the proposed claim
has the appearance of merit. If claimant cannot establish a meritorious claim,
it would be an exercise in futility to grant a late claim application (Savino
v State of New York, 199 AD2d 254; Prusack v State of New York, 117
AD2d 729). In order to establish a meritorious cause of action, claimant has
the burden to show that the proposed claim is not patently groundless,
frivolous, or legally defective, and that there is reasonable cause to believe
that a valid claim exists (Matter of Santana v New York State Thruway
Authority, 92 Misc 2d 1).
In this case, claimants have provided sufficient allegations to satisfy, for
purposes of this application, the minimal requirements of Santana in
establishing the appearance of a meritorious claim on their derivative cause of
action, and have also set forth sufficient and particular allegations
establishing the appearance of a meritorious cause of action for medical
malpractice on the underlying claim asserted on behalf of their infant son.
Although not addressed, it does appear that claimants might have another
available remedy in an individual action against the medical personnel who
treated their infant son.
The Court may in its discretion place as much or as little weight on any of the
six factors to be considered pursuant to the statute. Under the current law
"[n]othing in the statute makes the presence or absence of any one factor
determinative" (Bay Terrace Coop. Section IV v New York State Employees'
Retirement System Policemen's & Firemen's Retirement System, 55 NY2d
979) and none of the factors can require denial as a matter of law.
Accordingly, after a review of the papers submitted herein, and after weighing
and considering all of the factors set forth under Court of Claims Act §
10(6), it is the opinion of this Court that claimants should be allowed to serve
and file their proposed claim.
Accordingly, it is
ORDERED, that Motion No. M-71865 is hereby DENIED, as unnecessary, with regard
to the late claim application submitted on behalf of Joshua Brown; and it is
ORDERED, that this motion is GRANTED to the extent that this motion seeks
permission for the late service and filing of a derivative claim on behalf of
Elissa Brown and Karl Brown; and it is further
ORDERED, that claimants are directed to file and serve their proposed claim,
properly verified, within 45 days from the date of filing of this decision and
order in the Clerk of the Court of Claims’ office, with such service and
filing to be in accordance with the Court of Claims Act, with particular
reference to Sections 10, 11 and 11-a, and the Uniform Rules for the Court of