New York State Court of Claims

New York State Court of Claims

YACKETTA v. STATE OF NEW YORK, #2006-018-527, Claim No. None, Motion No. M-71566


Motion to file late claim is 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:
ROBERT E. LAHM, PLLCby: Robert E. Lahm, Esquire
Defendant’s attorney:
Attorney General of the State of New York
By: Patrick F. MacRae, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 5, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


Movant brings a timely motion seeking permission to file a late claim pursuant to Court

of Claims Act §10(6) (Court of Claims Act §10[6]; CPLR 214-a). Defendant opposes the motion.

The proposed claim asserts that Movant was a patient at State University of New York Upstate Medical University (hereinafter University Hospital) from March 12, 2004 through January 31, 2005. On March 12, 2004, Movant alleges that Dr. Robert Lai negligently performed a vaginal vault suspension which necessitated three additional surgeries and several admissions to University Hospital. Movant asserts that Dr. Lai and the urological staff of University Hospital failed to identify and isolate her ureter during surgery; placed a suture through the ureter which caused urine to leak into her abdominal cavity; failed to timely diagnose the suture in the ureter; failed to repair the ureter; failed to culture the draining fluid from Movant’s wound; failed to follow-up with infectious disease consultations which indicated a bladder perforation; discharged the Movant before following up on CT scans which revealed enlarged kidneys caused by urine back-up; discharged Movant before determining the reason for fluid collection in her abdomen; discharging the Movant before identifying the fluid leaking from her wound; discharged Movant before reading her CT scans; lacerating her bladder and bowel during the April 19, 2004 surgery; failing to identify the ureter during the April 19, 2004 surgery; failing to diagnose and repair the lacerated bowel; failing to properly repair the right urethral leak; failing to select healthy tissue to perform the colostomy and eliminate the need to resect a greater portion of the bowel during the April 27, 2004 surgery; failing to diagnose the cause of Movant’s continued urinary retention problems before discharging her on June 24, 2004; failing to exercise ordinary and reasonable care that would have prevented the iatrogenic injuries during the October 20, 2004 surgery; failing to properly perform the colostomy takedown and reversal during the October 20, 2004 surgery; discharging the Movant when she did not have a bowel movement for two days on October 25, 2004; failing to place a drain in the incision before November 4, 2004 when it was evident that there was a large fluid collection; discharging Claimant on November 8, 2004, before diagnosing why she had bilateral swelling of the kidneys and ureter; discharging Movant on November 8, 2004, before determining the reason for the large fluid collection in her abdomen; failing to determine what was causing the swelling in the kidneys and ureter; failing to determine what was causing the large fluid collection in the abdomen; failing to exercise the necessary experience and skills to treat the Claimant and/or failing to possess the necessary or requisite experience, skill and learning in the treatment of Claimant; failing to avoid a result which was foreseeable and which could have been avoided through the exercise of reasonable care; and repeatedly damaging Movant’s abdominal organs which created the need for several resections of the bowel and intestines and two subsequent corrective surgeries at St. Joseph’s Hospital in Syracuse.

On an application for permission to file a late claim, consideration must be given to the six factors listed in Court of Claims Act § 10(6), and any other relevant factors. A balancing of all of the factors in the discretion of the Court may warrant the granting of the application to file and serve a late claim; no one factor is determinative (Bay Terrace Cooperative Section IV, Inc., v New York State Employees’ Retirement System Policemen’s and Firemen’s Retirement System, 55 NY2d 979; Ledet v State of New York, 207 AD2d 965.)

The first factor is whether the proposed Claimant has an acceptable excuse for failing to timely file and serve a claim. Movant alleges that she has been in and out of the hospital from March 12, 2004, the date of the first surgery until the present. A review of Movant’s extensive history of hospitalizations and surgeries presents with a reasonable excuse as to why she failed to timely serve a notice of intention or serve and file a claim in this matter (see DeOlden v State of New York, 91 AD2d 1057; Stabile v State of New York, 12 AD2d 698; Plate v State of New York, 92 Misc 2d 1033). As a result, the Court finds this factor weighs in favor of granting Movant’s application.

Turning now to the factors of the State’s notice of the facts underlying the proposed claim, whether it had an opportunity to investigate the facts, and whether it will suffer prejudice if the application is granted. Movant asserts that all of the complications she suffered were duly noted in her medical records. Movant’s numerous procedures and treatment are documented in her medical records and indicate the complications Movant suffered. Although the mere existence of medical records does not equate with notice for purposes of a late claim motion, since to find otherwise would be to establish notice for any medical malpractice claim where medical records exist, in this case, the medical records document the development of extensive problems (i.e., a suture through the ureter, a perforated bowel) which should have generated some awareness of a potential medical malpractice claim. Even if the medical records did not place the State on notice, the existence of the records will minimize any prejudice caused by the passage of time and permit an investigation to be done. The medical records will permit a determination of what care Movant received and assist in identifying potential witnesses.

The next factor, whether the claim appears to be meritorious, is referred to as the most essential factor. Unlike a party who has timely filed a claim, one seeking permission to file a late claim has the heavier burden of demonstrating that the proposed claim appears to be meritorious (see Nyberg v State of New York, 154 Misc 2d 199). Generally a proposed claim meets this standard if it is not patently groundless, frivolous, or legally defective, and upon consideration of the entire record there is cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 11). Movant attaches the affidavit of Ron S. Israeli, M.D. Dr. Israeli describes how, in his opinion, the medical personnel at University Hospital deviated from the standard of care in performing Movant’s four surgeries and in the follow-up care she received. Dr. Israeli opines that Movant has suffered permanent injuries as a result of the care she received at University Hospital, including damage to her internal organs, and the development of significant adhesions. She also suffered from infection and additional surgeries. Movant has established that the proposed claim is potentially meritorious. This factor weighs in favor of Movant’s application.

The final factor to be considered is whether Movant has any other available remedy. Movant may have individual causes of action against the doctors who performed her surgeries.

Upon balancing all of the factors, the Court finds Movant’s application should be granted. Movant is directed to pay the appropriate filing fee, file and serve the proposed claim, properly verified, within 30 days of the date this Decision and Order is filed with the Clerk of the Court in accordance with all applicable statutes and rules.

September 5, 2006
Syracuse, New York

Judge of the Court of Claims

The Court has considered the following documents in deciding this motion:

Notice of Motion....................................................................................1

Affidavit of Robert E. Lahm, Esquire, sworn to April 11, 2006, in

support, with exhibit attached thereto........................................2

Affidavit of Ron S. Israeli, M.D., sworn to April 10, 2006,

in support....................................................................................3

Memorandum of Law in support, dated April 11, 2006.........................4

Affirmation of Patrick F. MacRae, Esquire, Assistant Attorney

General, in opposition, with exhibits attached thereto...............5

Memorandum of Law in opposition, dated June 1, 2006.......................6

Reply Memorandum of Law, in support, dated June 6, 2006................7