New York State Court of Claims

New York State Court of Claims

LUDSKER v. THE STATE OF NEW YORK, #2007-030-537, , Motion No. M-72962


Late claim motion granted. Appearance of merit to claim that Helen Hayes Hospital personnel negligently allowed lunch tray containing hot liquid to be left with claimant without supervision, in contravention of post-operative care instructions, causing her to suffer severe burns.

Case Information

1 1.The caption has been amended to reflect the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended to reflect 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:
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
June 4, 2007
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on claimants’ motion for permission to serve and file a late claim, brought pursuant to Court of Claims Act §10(6):
1,2 Notice of Motion; Attorney Affidavit by Samuel Hirsch, Counsel for claimants and attached exhibits

  1. Opposition to Motion for Leave to File a Late Claim by Dian Kerr McCullough, Assistant Attorney General
  1. Reply by Samuel Hirsch, Counsel for claimants and attached exhibits
In her proposed claim, Etta Ludsker alleges that defendant’s agents at Helen Hayes Hospital (hereafter Helen Hayes) negligently allowed a lunch tray containing a hot liquid to be served to claimant[2] without supervision, in contravention of post-operative care instructions, causing her to suffer severe burns. Specifically, on February 27, 2006 claimant was in her hospital room after her admission five (5) days earlier recovering from brain surgery, when a lunch tray was delivered to her room and simply left there. When Ms. Ludsker attempted to remove the lid off the cup of hot water on her tray, the hot water spilled and burned her left leg and buttocks.

Claimant remained a patient at Helen Hayes until she was discharged on June 9, 2006, and began receiving out-patient rehabilitation services. [Attorney Affidavit by Samuel Hirsch, Exhibit C, Affidavit of Etta Ludsker, ¶5]. She indicates that when she had first been admitted after undergoing surgery in Arizona, a personal rehabilitation plan was devised for her, involving the administration of medication for “pain, anxiety, depression, high blood pressure . . .” and that such medication had many side effects, including “. . . drowsiness, lack of concentration, lack of control and memory loss.” [Ibid. ¶4]. She had “significant left sided paralysis, . . . [and] had difficulty speaking and being understood, difficulty eating, swallowing, as well as difficulty sleeping, [and] difficulty concentrating . . . [She] was confined to bed being unable to walk.” [Id.]. The incident alleged herein occurred approximately five (5) days after her admission to Helen Hayes. [Ibid. ¶6]. Thinking the cup on the lunch tray that had appeared at her bedside was water, and not knowing there was hot liquid in it, she reached for the cup, tried to remove the lid - a difficult task given her physical ailments - and the entire hot cup spilled onto her upper left leg and buttock area. [Id.].

Counsel for claimants writes that he was first consulted by claimants on or about May 24, 2006, and immediately began the process of trying to obtain records from Helen Hayes in order to determine if an accident had occurred as described by the consulting claimants, and to pinpoint the date. Given the memory problems, claimants were unsure as to when the accident may have occurred, and initially thought that it had occurred only days earlier. [See Attorney Affidavit by Samuel Hirsch, ¶5]. Numerous written requests were made for the records. [Ibid. Exhibit B, Affidavit by Linda Simmons]. The attorney’s office was advised that no records were forthcoming because Ms. Ludsker was still a patient, among other things. [Ibid. ¶5]. Even after such consultation, she remained a patient, “. . . transferred within the hospital to the subacute program . . . to continue rehabilitation . . . [as] an in-patient . . . until June 9, 2006.” [Ibid. ¶10].

According to the exhibits attached, the records were received from Helen Hayes after some discussion of payment for same on or about October 18, 2006. [Ibid. Exhibit B, Affidavit by Linda Simmons, ¶4]. Although counsel did not serve a Notice of Intention to File a Claim or a Claim when first consulted within ninety (90) days of accrual of the Claim, such failure appears to have been based upon the laudatory purpose of investigating the matter more thoroughly before starting a lawsuit.

In order to determine an application for permission to serve and file a late claim, the Court must consider, “among other factors,” the six factors set forth in §10(6) of the Court of Claims Act. The factors stated 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 serve upon the Attorney General a claim or notice of intention to file a claim, and the failure to timely file the claim with the Court of Claims; and (6) whether any other remedy is available.[3] The Court is afforded considerable discretion in determining whether to permit the late filing of a claim. See e.g. Matter of Gavigan v State of New York, 176 AD2d 1117, 1118 (3d Dept 1991). The presence or absence of any particular factor is not dispositive. Bay Terrace Coop. Section IV, Inc. v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, 55 NY2d 979, 981 (1982); Broncati v State of New York, 288 AD2d 172 (2d Dept 2001).

Additionally, the motion must be timely brought in order to allow that a late claim be filed “. . . at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules . . . ” Court of Claims Act § 10(6). Here, assuming a cause of action in negligence, and an accrual date of February 27, 2006, the applicable statute of limitations is three (3) years, thus the motion is timely. Civil Practice Law and Rules §214 (5).

A claim appears to be “meritorious” within the meaning of the statute if it is not patently groundless, frivolous or legally defective and a consideration of the entire record indicates that there is reasonable cause to believe that a valid cause of action exists. Matter of Santana v New York State Thruway Auth, 92 Misc 2d 1 (Ct Cl 1977). Claimant need not establish a prima facie case at this point, but rather the appearance of merit.

The hospitalization of claimant, together with the nature of her ailments, as well as the difficulty counsel experienced in gathering information, constitute a reasonable excuse in the nature of a disability. See Wolf v State of New York, 140 AD2d 692, 693 (2d Dept 1988); Plate v State of New York, 92 Misc 2d 1033, 1037-1039 (Ct Cl 1978). With respect to any asserted medical or other impairment, claimant has also supplied in addition to her own statements, statements by the attorney in her counsel’s office who was involved in gathering the information, as well as copies of the records ultimately secured, thus offering further support to the contention that she has a reasonable excuse. See Wolf v State of New York, supra;[4] cf. Cabral v State of New York, 149 AD2d 453 (2d Dept 1989)[5]; Goldstein v State of New York, 75 AD2d 613, 614 (2d Dept 1980)[6]. Claimant has adequately shown that her circumstances made it difficult to timely serve either a Notice of Intention to File a Claim to afford her more time for investigation - especially in light of the difficulty of ascertaining a date of accrual - or the Claim itself.

Indeed, an excuse is but one of the factors to be considered, and its presence or absence does not conclude whether late claim relief is afforded. Bay Terrace Coop. Section IV, Inc. v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, supra.

The closely related factors of notice, opportunity to investigate and prejudice to the State, considered together, also weigh toward granting Claimants’ motion. There are ample records as shown in the attachments to claimants’ reply papers. [See Reply by Samuel Hirsch, Exhibit B]. Indeed, the passage of time has not been so great that the State’s ability to investigate is impeded to its prejudice. Cf. Edens v State of New York, 259 AD2d 729 (2d Dept 1999) (Two years and two and one-half months from date of accrual). Accordingly, these factors weigh in favor of granting the motion.

When the proposed claim asserts a cause of action requiring an expert opinion in order to be established, an affidavit of merit from a qualified expert should be included with the application. See Matter of Perez v State of New York, 293 AD2d 918 (3d Dept 2002)[7]. As a claim alleging simple negligence - as opposed to medical malpractice - any alleged negligent omissions or acts by the State’s employees can be readily determined by a fact finder using common knowledge without the necessity of expert testimony [see Coursen v New York Hospital-Cornell Med. Center, 114 AD2d 254, 256 (1st Dept 1986)], thus no expert affidavit is necessary in order to sustain an application for late claim relief.

To establish a prime facie case of negligence the following elements must exist: (1) that defendant owed the claimant a duty of care; (2) that defendant failed to exercise proper care in the performance of that duty; (3) that the breach of the duty was a proximate cause of claimant’s injury; and (4) that such injury was foreseeable under the circumstances by a person of ordinary prudence. As noted, claimant need not establish her claim prima facie, but rather show the appearance of merit. If the allegations in the claim are accepted as true for the purposes of the motion, claimants have made the requisite showing of merit in order to permit late filing of their claim.

Accordingly, and after careful consideration of all the appropriate factors [Court of Claims Act §10(6)], the court hereby exercises its discretion to find that claimants’ motion for permission to serve and file a late claim is hereby granted. Claimants are directed to serve their claim upon the Attorney General, naming the State of New York as the only proper defendant under the facts asserted as reflected in the proposed claim attached to claimants’ Reply papers, file same with proof of service with the Chief Clerk of the Court of Claims within thirty (30) days from the date of filing of this decision and order, with such service and filing to be in accordance with the Court of Claims Act, with particular reference to §§ 10, 11, and 11-a, and the Uniform Rules for the Court of Claims. 22 NYCRR §206.1 et seq.

June 4, 2007
White Plains, New York

Judge of the Court of Claims

[2]. References to claimant shall be to Etta Ludsker, unless the context requires otherwise, since the claim of Yisroel Ludsker is strictly derivative.
[3]. The Defendant has not opposed the motion on the ground of availability of another remedy, therefore this factor is presumed to weigh in claimant’s favor. Cole v State of New York, 64 AD2d 1023, 1024 (4th Dept 1978)[“Although the State argues in this appeal that claimant's inference of notice to it is based on equivocal facts, it filed no affidavit with the court claiming either prejudice or lack of notice. When answering affidavits are not produced, the facts alleged in the moving affidavits will be taken by the court as true . . . (citations omitted).”]
[4]. Fact of prolonged hospitalization due to automobile accident, and its documentation, provided reasonable excuse for delay in filing.
[5]. “The only excuse offered in support of the contention that the delay was excusable was a conclusory assertion by the claimant’s counsel, unsupported by a physician’s affidavit, that the claimant’s alleged hospitalization at some undisclosed time delayed her from contacting an attorney, and that the claimant had no knowledge of the 90-day statutory filing requirement.”
[6]. “Although claimant alleged she was either hospitalized or convalescing for the entire period during which she could have timely filed the claim, such alleged incapacity is inadequate as an excuse for late filing without either a physician’s affidavit or hospital records . . . (citation omitted).”
[7]. Inmate’s failure to establish merits of medical malpractice claim through expert medical evidence warranted denial of late claim motion where he claimed mis-diagnosis and ineffectual treatment of cancer exacerbated his condition. A layperson alone could not say whether treatment deviated from accepted standards of care.