New York State Court of Claims

New York State Court of Claims

WHITE v. STATE OF NEW YORK, #2006-018-529, Claim No. NONE, Motion No. M-71605


Movant’s late claim motion is denied.

Case Information

1 1.The Court has amended the caption sua sponte to reflect the State of New York as the only proper Defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court has amended the caption sua sponte to reflect the State of New York as the only proper Defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
O’HARA & O’CONNELLBy: Frank S. Gattuso, Esquire
Defendant’s attorney:
Attorney General of the State of New York
By: Maureen A. MacPherson, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 6, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


Movant brings this motion for “Leave to Serve Notice of Intention to File Claim after 90-

Day Period.” Defendant opposes the requested relief.

This Court has no authority to permit the late service of a notice of intention (Court of Claims Act § 8). The Court of Claims Act § 10(6) permits a potential claimant, who has failed to timely serve a notice of intention or file and serve a claim, to make an application to the Court for permission to file and serve a late claim at anytime before the action would be barred by the statute of limitations as against a citizen of the State (Court of Claims Act § 10[6], CPLR 214-a).[2] For purposes of this motion the Court shall treat this motion as one seeking late claim relief. A proposed claim, containing all of the information required by Court of Claims Act

§ 11, must accompany any late claim application. Attached to the moving papers is a document labeled a “Notice of Intention to File Claim” (Exhibit A) which contains all of the information required by § 11 of the Court of Claims Act. The Court will treat the “Notice of Intention to File Claim” as the proposed claim.

This proposed claim asserts that on November 7, 2005, Movant was seriously injured as a result of a slip and fall, suffering a fractured left humerus, multiple rib fractures, and traumatic pneumothorax. Movant was transported to State University of New York Upstate Medical University (hereinafter University Hospital). While a patient at University Hospital on November 28, 2005, a “PEG (feeding) tube” was inserted, and Movant alleges as a result he suffered a second pneumothorax. Since that time and continuing to the date of his submissions, Movant is dependent upon a ventilator, which he attributes to the insertion of this PEG tube and the second pneumothorax.

To determine whether an application for permission to file a late claim should be granted, consideration must be given to the six factors listed in Court of Claims Act § 10(6) and any other relevant factors. The presence or absence of any one factor is not 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). Instead, it is a balancing of all of the factors by the Court which may warrant the granting of the application to file and serve a late claim.

Movant’s excuse for the failure to timely serve a notice of intention or to file and serve a claim in accordance with Court of Claims Act § 10 is that his incapacity, due to his medical condition, prevented him from timely serving a notice of intention. Movant was clearly incapacitated until January 31, 2006, and thereafter discharged to a long-term care facility where, according to his affidavit, he remains. Movant did not retain an attorney until February 22, 2006, at which time he had five days[3] to timely serve his notice of intention. The extent of Movant’s incapacitation upon his discharge from the hospital is not provided. Under the circumstances, the Court finds this factor weighs against granting Movant’s application (see Crane v State of New York, 29 AD2d 1001; Klingler v State of New York, 213 AD2d 378; cf., 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). The delay in receiving copies of medical records is not a sufficient excuse (see Weiler v State of New York, unpublished Decision and Order, Ct Cl, Scuccimarra, J., dated April 11, 2005, Cl No. None, Motion No. M-69619 [UID #2005-030-521]; Massey v State of New York, unpublished Decision and Order, Ct Cl, Lack, J., dated March 18, 2005, Cl No. None, Motion No. M-67831 [UID #2005-033-104]).

Turning to whether the State had notice, an opportunity to investigate the facts underlying the proposed claim, or whether the State would suffer prejudice if the application was granted, these factors, being interrelated, will be considered together. Movant argues that the State had notice of the essential facts when Movant’s daughter, Michelle White, went to the Patient Relations Department and filed a complaint on January 27, 2006, that Movant suffered a second pneumothorax as a result of a tube insertion. The responding letter received from the Patient Relations Department indicates that a thorough review of Movant’s chart was conducted and several physicians were questioned. The Court finds that Defendant was given timely notice of the facts underlying Movant’s potential claim. It, therefore, also had an opportunity to investigate the facts at that time. The Defendant was served with a notice of intention on April 12, 2006, which, even if untimely, was less than five months from the alleged wrongdoing. Under these circumstances, the Court finds that these factors weigh in favor of granting Movant’s application.

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). The basis for Movant’s claim is the negligent insertion of a PEG tube resulting in Movant suffering a second pneumothorax. Movant has attached only medical records, no expert medical affidavit was provided asserting facts evidencing a meritorious cause of action (Colson v State of New York, 115 Misc 2d 402). Movant asserts that the malpractice in this case was acknowledged in the letter of Marlene Gallo of the Patient Relations Department. Ms. Gallo’s letter does not establish that the tube to which she refers in item (4) of her letter was the PEG tube, nor does her letter provide any basis for concluding that the insertion was negligently performed causing the second pneumothorax and Movant’s ventilator dependency. The Court is without the knowledge to determine whether the PEG tube insertion deviated from acceptable standards of care and was causally related to Movant’s pneumothorax complications. The circumstances in this case do not permit the Court to determine, without an expert affidavit, whether there is reasonable cause to believe that a valid cause of action exists (Schreck v State of New York, 81 AD2d 882; Colson, 115 Misc 2d at 403; Favicchio v State of New York, 144 Misc 2d 212; but compare DePaolo v State of New York, 99 AD2d 762 [Claimant’s medical records established condition which, based upon the packaging literature of Motrin, should have precluded the use of the drug]; Caracci v State of New York, 203 AD2d 842 [radiologist report after x-ray indicated a mass in chest which was either malignant or benign, further testing was recommended, report was never given to Claimant who continued to treat with same facility, no further testing was performed, Claimant found a mass on her neck which was cancerous]). This factor weighs against granting the motion.

The final factor to be considered is whether movant has any other available remedy. Movant may have another remedy in the form of an individual action against the doctor(s) who he alleges were negligent.

Upon balancing all of the factors in the Court of Claims Act § 10(6), this Court DENIES the motion without prejudice with leave to bring an appropriate application within the time frame set forth in CPLR 214-a.

September 6, 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 Frank S. Gattuso, Esquire, in support,

sworn to on April 18, 2006, with exhibits attached thereto..................2

Memorandum of Law, in support, dated April 17, 2006..................................3

Affirmation of Maureen A. MacPherson, Esquire, Assistant

Attorney General, in opposition...........................................................4

Reply Affirmation of Frank S. Gattuso, Esquire, in support............................5

[2]. The notice of intention personally served upon Defendant may be timely if the date of accrual is stayed until Movant’s discharge from the hospital under the continuous treatment doctrine. However, there is insufficient information before the Court to determine whether the alleged negligent placement of the PEG (feeding) tube was part of a continuous course of treatment or whether it was a separate and distinct act unrelated to his ongoing treatment for the complications which arose from his hospital admission for traumatic pneumothorax, multiple rib fractures and a left humerus fracture. As a result, the Court has proceeded with consideration of the Court of Claims Act § 10(6) motion.
[3]. Using November 28, 2005, the date the PEG tube was inserted as the date of accrual, Movant would have had until February 26, 2006 to serve the notice of intention, however, since that date fell on a Sunday, he would have had until Monday, February 27, 2006 (General Construction Law § 25-a).