New York State Court of Claims

New York State Court of Claims

GONZALEZ v. THE STATE OF NEW YORK, #2007-016-054, Claim No. None, Motion No. M-73566


Case Information

LISA GONZALEZ as Administrator of the Goods, Chattels and Credits of the Estate of JOSE J. GONZALEZ, JR. and LISA GONZALEZ individually
Claimant short name:
GONZALEZ 1 1.At the time this motion was made, the caption listed “Jose J. Gonzalez, Jr. and Lisa Gonzalez” as claimants. Subsequently, Mr. Gonzalez died and Lisa Gonzalez was appointed administrator of his estate. The Court has amended the caption accordingly. In view of the foregoing, references herein will be to claimant in the singular, and the request in this motion for a deposition of Mr. Gonzalez will not be addressed.
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Alan C. Marin
Claimant’s attorney:
Gary B. Pillersdorf and Associates, P.C.By: Salvatore J. Calabrese, Esq.
Defendant’s attorney:
Andrew M. Cuomo, Attorney GeneralBy: Ross N. Herman, Esq., AAG
Third-party defendant’s attorney:

Signature date:
December 5, 2007
New York

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves for an order permitting her to file a late claim pursuant to §10.6 of the Court of Claims Act (the “Act”), as well as directing the production of various medical documents. In the proposed claim, it is alleged that on June 21, 2005, Jose J. Gonzalez, Jr. had a CT scan of his abdomen and that the report thereon stated in relevant part that there were “[i]nflammatory changes in the mid sigmoid colon suggestive of diverticulitis. Underlying mass cannot be excluded. Repeat study in six weeks is recommended with oral and IV contrast.” It is further alleged that defendant failed to advise Mr. Gonzalez or his treating or primary care physician of these findings, that the CT findings were essentially ignored, and that Mr. Gonzalez was subsequently diagnosed with terminal colorectal cancer. This motion was submitted as an order to show cause. On June 2, 2007, before the motion had been served on defendant, Mr. Gonzalez died. On June 15 and 18, 2007, respectively, a claim (no. 113847) was filed and served, listing claimant as Lisa Gonzalez, both individually and as “qualifying administratrix” of Mr. Gonzalez’s estate. On July 17, 2007, Lisa Gonzalez was appointed as administrator of the estate and an amended claim reflecting same was filed on September 27, 2007, i.e., within 90 days of appointment. It is unclear from the submissions when the amended claim was served on defendant (claimant’s affidavit of service indicates that it was sent on September 25, 2007).

Both the claim and amended claim that were served and filed contain causes of action relating to damages prior to Gonzalez’s death, as well as for wrongful death To the extent that the amended claim was served on defendant within ninety days of Lisa Gonzalez’s July 17, 2007 appointment, the cause of action for wrongful death would be timely pursuant to §10.2 of the Act, but the remaining causes of action would not (see §10.3 of the Act). In any event, this late claim motion seeks permission only with respect to the causes of action for damages prior to Mr. Gonzalez’s death; it does not seek permission with respect to a wrongful death cause of action.

In order to determine this motion, six factors enumerated in the Act must be considered: whether (1) defendant had notice of the essential facts constituting the claim; (2) defendant had an opportunity to investigate the circumstances underlying the claim; (3) defendant was substantially prejudiced; (4) claimant has any other available remedy; (5) the delay was excusable and (6) the claim appears to be meritorious. The factors are not necessarily exhaustive, nor is the presence or absence of any particular factor controlling.[2]

With regard to notice, claimant points out that defendant is in possession of Mr. Gonzalez’s medical records. But if such were sufficient to impute notice for the purpose of the Act, this would mean that in any medical malpractice case, such factor would automatically be satisfied. See O’Shea v State of New York, Ct Cl filed November 5, 1999 (unreported, motion no. M-59853, Marin, J.), affd 278 AD2d 237, 717 NYS2d 293 (2d Dept 2000). However, the aforesaid medical records do offer an opportunity to investigate. As for prejudice, defendant does not raise an argument thereon. With regard to an alternate remedy, claimant has already commenced an action against various physicians in Supreme Court.

As to excuse, defendant points out that while claimant was diagnosed with cancer in February 2006, counsel was not retained until November 2006 and the instant motion was not made until June 2007. Defendant further points out that by claimant’s counsel’s own admission, Mr. Gonzalez’s Downstate records were not sought until March 2007. In that regard, counsel for claimant explains that the Downstate records were not initially requested because “they did not appear to be necessary to the investigation of the claim.” Counsel further explains that Mr. Gonzalez recalled only that he had gone to an emergency room in Brooklyn for kidney stones in June 2005, but could not recall the institution and it was not “readily apparent that this treatment was related” to the instant claim. According to counsel, after it was learned that Mr. Gonzalez had been treated at the Downstate emergency room and those records were obtained, “we learned for the first time that a CT scan study had been done. It was that study that diagnosed the kidney stones and it was also that study that revealed a suspicious area in claimant’s decedent’s abdomen, which could be a mass. The recommendation for follow up was not pursued and it appears that Mr. Gonzalez fell through the cracks. He was not told of this condition by . . . Downstate . . .” At best, given the above narrative, claimant is on the cusp of satisfying the excuse factor.

The remaining factor to be considered is whether the proposed claim appears meritorious. Claimant has submitted the affidavit of Heidi Goldberg, M.D.,[3] who states that “based upon a reasonable degree of medical certainty . . . the tumor that was later diagnosed in Mr. Gonzalez is the same tumor as that suggested in the CT report of 06/21/05. . . It is also my opinion, based upon a reasonable degree of medical certainty, that had Mr. Gonzalez been worked up after the 06/21/05 study . . . his colon cancer would have been discovered, with a significantly improved prognosis.” I find that claimant meets the standard set forth in Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 11, 399 NYS2d 395, 402-03 (Ct Cl 1977): (i) the claim "must not be patently groundless, frivolous, or legally defective" and (ii) upon consideration of the entire record, including the proposed claim and any exhibits or affidavits, "there is reasonable cause to believe that a valid cause of action exists."

Finally, as to the production of medical records sought by claimant, such will be addressed at a conference to be scheduled by the Court.

In view of the foregoing, having reviewed the submissions[4], IT IS ORDERED that motion no. M-73566 be granted to the extent that within forty-five (45) days of the filing of this Decision and Order, claimant shall serve and file the proposed claim submitted with this motion, and otherwise comply with §§11 and 11-a of the Court of Claims Act.

December 5, 2007
New York, New York

Judge of the Court of Claims

  1. [2]See Bay Terrace Coop. Section IV, Inc. v New York State Employees’ Retirement Sys. Policemen’s and Firemen’s Retirement Sys., 55 NY2d 979, 449 NYS2d 185 (1982); Scarver v State of New York, 233 AD2d 858, 649 NYS2d 280 (4th Dept 1996).
  2. [3]Counsel for defendant originally objected to such affidavit on the ground that it was executed outside the State of New York, but such objection has been withdrawn. See the August 10, 2007 letter form Salvatore J. Calabrese, Esq. and the August 14, 2007 letter from Ross N. Herman, Esq., AAG.
  3. [4]The Court reviewed the following: claimant’s order to show cause with affirmation in support and exhibits A through G; defendant’s affirmation in opposition with exhibit A; claimant’s reply affirmation with exhibits A through C; claimant’s July 31, 2007 letter with undesignated exhibits; claimant’s August 10, 2007 letter; and defendant’s August 14, 2007 letter.