New York State Court of Claims

New York State Court of Claims

HOGAN v. THE STATE OF NEW YORK, #2007-009-030, Claim No. NONE, Motion No. M-73476


Claimant’s unopposed motion for late claim relief (medical malpractice) was 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:
BY: Timothy J. DeMore, Esq.,Of Counsel.
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
October 1, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has brought this unopposed motion seeking permission to serve and file a late claim.

The following papers were considered by the Court in connection with this motion:
Notice of Motion 1

Attorney Affidavit, with Exhibit (Expert Affidavit)[1] 2

Claimant Affidavit 3

Memorandum of Law 4

Proposed Claim 5

In his proposed claim, claimant seeks damages based upon alleged incidents of medical malpractice beginning on September 16, 2005 and continuing through January 31, 2006, claimant also alleges that this malpractice continued thereafter due to the failure to order any diagnostic testing on claimant following a January 31, 2006 surgery. During this time, claimant was being treated at the State University Hospital Upstate Medical Center in Syracuse for laryngeal squamous cell carcinoma, and claimant alleges that agents, officers and/or employees of University Hospital failed to timely and properly diagnose and treat his condition.

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), and the presence or absence of any particular factor is not dispositive of any such application (Bay Terrace Coop. Section IV, Inc. v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, 55 NY2d 979).

With regard to excuse, claimant asserts that he was unaware of the 90 day time period for instituting a claim against the State contained in Court of Claims Act § 10(3). Furthermore, claimant asserts that due to his medical condition, he was unable to meet with his attorneys, and as a result, his attorneys were unable to obtain claimant’s medical records for review. It is well-settled, however, that ignorance of the law is not an acceptable excuse for the failure to timely serve and file a claim (Matter of E.K. v State of New York, 235 AD2d 540). Furthermore, even though the Court understands that claimant was justifiably preoccupied with his medical condition and treatment during this time, something more than his unsupported assertions of such incapacity, such as a physician’s affidavit, is required to establish that he was physically incapable of taking steps to initiate his action during the applicable time period (Cabral v State of New York, 149 AD2d 453; Goldstein v State of New York, 75 AD2d 613). Based on the foregoing, therefore, the Court finds that claimant has not established an acceptable excuse for his failure to timely serve and file a claim herein.

The factors of notice, opportunity to investigate, and substantial prejudice will be considered together. Although the medical treatment provided to claimant during this time is well documented, there is no indication in the moving papers that the State had actual notice of a potential claim, nor is there any indication that the State had any opportunity to investigate the circumstances underlying the claim prior to this motion. However, the existence of these medical records does provide the State with adequate opportunity to defend this claim, and the Court finds that the State will not be prejudiced in its defense of this claim should this application be granted.

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 particular matter, claimant has submitted an affidavit of a medical expert who has reviewed claimant’s medical records and has rendered an opinion that claimant has a meritorious claim for medical malpractice against the State of New York. Based on this affidavit, the Court finds that claimant has made a sufficient showing of merit for this claim.

It appears that claimant may have another available remedy, such as an action in State Supreme Court individually against his medical providers.

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 claimant should be allowed to serve and file his proposed claim.

Accordingly, it is

ORDERED, that Motion No. M-73476 is hereby GRANTED; and claimant is directed to file and serve his proposed claim, properly verified, within 45 days from the date of filing of this decision and order in the Clerk’s 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; and it is further

ORDERED, that the documents submitted by claimant, under seal, for in camera review by this Court in connection with this application shall remain sealed.

October 1, 2007
Syracuse, New York

Judge of the Court of Claims

[1]. In the papers served upon the Attorney General, the identity of claimant’s medical expert, and his or her Curriculum Vitae were redacted at the expert’s request. Claimant’s attorney did provide the Court, under the Expert Affidavit containing the identity of his expert, which has been reviewed by the Court in its consideration of this motion.