New York State Court of Claims

New York State Court of Claims

BROWN v. THE STATE OF NEW YORK, #2006-009-050, Claim No. NONE, Motion No. M-71865


Claimants’ application for late claim relief was granted.

Case Information

ELISSA BROWN and KARL BROWN, Individually and as Natural Parents and Guardians of JOSHUA BROWN, an Infant
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:
BY: Ronald R. Benjamin, Esq., Of Counsel.
Defendant’s attorney:
Attorney GeneralBY: No Appearance.
Third-party defendant’s attorney:

Signature date:
September 25, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


Claimants have brought this motion seeking permission to serve and file a late claim pursuant to Court of Claims Act § 10(6).

The following papers were considered by the Court in connection with this motion:
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, 2004.

In a Decision and Order dated May 8, 2006[1], 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[5]).

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 further

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 Claims.

September 25, 2006
Syracuse, New York

Judge of the Court of Claims

[1]. See Decision and Order to Motion No. M-71127, filed May 15, 2006.