New York State Court of Claims

New York State Court of Claims

HARLEY v. THE STATE OF NEW YORK, #2007-014-516, Claim No. 113152, Motion No. M-72830


Claimant’s application for permission to file a late claim for pain and suffering is granted.

Case Information

MARIE HARLEY as Administratrix of the Estate of KAREN HARLEY, deceased
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):

S. Michael Nadel
Claimant’s attorney:
Weisfuse & WeisfuseBy Martin H. Weisfuse
Defendant’s attorney:
Andrew M. Cuomo, Attorney GeneralBy Assistant Attorney General Ross N. Herman
Third-party defendant’s attorney:

Signature date:
October 29, 2007
New York

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on the claimant’s application for permission to file a late claim for pain suffering: Notice of Motion, Affirmation and Exhibits annexed; Affirmation in Opposition; Reply Affirmation.

The claimant seeks permission to file a late claim for the pain and suffering of decedent, arising out of an admission of several weeks at one of the defendant’s hospitals which ended with the decedent’s death. It is not disputed by the defendant that the claim for wrongful death was timely served and filed. Nor does the defendant dispute that a notice of intention to file a claim, including a cause of action for pain and suffering, was served upon the defendant 91 days after its accrual.

The defendant opposes the application, contending that the delay was not excusable, the defendant did not have notice of the facts constituting the claim or an opportunity to investigate, and that the claimant has an alternative remedy. The defendant does not dispute that the claim for pain and suffering arises out of the same circumstances giving rise to the claim for wrongful death.

The excuse offered by the claimant for the minimal delay in serving the notice of intention is that service did not occur until after receipt of a copy of the autopsy report which indicated a cause of death. An affidavit by the claimant, annexed as Exhibit A to the claimant’s submission, asserts that until then she had not been informed, by the defendant among others, of the cause of her daughter’s death. The affirmation of counsel, and supporting documentation, indicate that the notice of intention was mailed (in the statutorily required manner) less than a week later, and was received by the defendant on the 91st day after the decedent’s death. The circumstances render the one day delay as excusable.

The suggestion by the defendant that the claimant has an alternative remedy against doctors for whom the defendant is not responsible, fails to address the fact that allegations in the claim are directed against the hospital itself, without regard to vicarious liability for those doctors.

The defendant’s argument that it did not have notice or an opportunity to investigate fails to address the fact that, according to the autopsy report, the cause of death was “multiple vascular injuries during insertion of hemodialysis catheter for treatment of chronic renal failure due to hypertensive cardiovascular disease.” In and of itself, such would have constituted “actual knowledge of a potential injury” which could have resulted from the defendant’s “acts or omission” (Williams v Nassau County Medical Center, 6 NY3d 531, 537), warranting an investigation. There is no reason to believe that the medical examiner’s conclusion as to the cause of death was not based upon information readily available to the defendant from its own medical records, thus rendering inapplicable any of the case law offered by the defendant in support of its contention that mere possession of medical records is insufficient to constitute notice.

Finally, there will be no prejudice to the defendant if the application is granted, since the claim for wrongful death, arising out of the same facts, will proceed regardless. For the same reason, the appearance of merit, usually a significant factor in an application for permission to file a late claim, is not material to this particular application. In any event, an affidavit of a physician attesting to the merit of the claim has been included in the claimant’s submission.

In accordance with the foregoing, and upon consideration of the factors set forth in subdivision 6 of section 10 of the Court of Claims Act, the circumstances warrant exercise of the Court’s discretion to grant the claimant’s application. It is, therefore,

ORDERED, that the claimant’s application for permission to file a late claim alleging pain and suffering is granted. Upon the authority of Jomarron v State of New York, 23 AD3d 527, the cause of action for pain and suffering contained in the claim which has been filed is deemed filed pursuant to this Order as of the date of this Order.

October 29, 2007
New York, New York

Judge of the Court of Claims