New York State Court of Claims

New York State Court of Claims

NEWBERG v. STATE OF NEW YORK, #2007-045-025, , Motion No. M-73983


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:
Robert F. Danzi, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo, Attorney GeneralBy: Mary Y.J. Kim, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 15, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were reviewed by the Court on this motion: Claimant’s Notice of Motion, Attorney Affirmation in Support, Claimant’s Affidavit in Support, Physician’s Affirmation of Merit and the proposed claim annexed as Exhibit A and Defendant’s Affirmation in Opposition.

Claimants, Bernard and Linda Newberg, have brought this motion seeking an order granting leave to file a late claim pursuant to Court of Claims Act § 10(6). Claimants had previously filed a claim in this matter with the Clerk of the Court of Claims on April 17, 2007. By stipulation, so ordered by this court on August 14, 2007, claimants discontinued that claim. Defendant, the State of New York, has taken no position with respect to claimants’ motion.

In the present application, claimant[1] alleges that on May 31, 2006, he was a patient at the Stony Brook University Hospital (Hospital) where he underwent a laparoscopic procedure for the removal of his gallbladder. During the procedure, the Hospital’s surgical staff improperly clipped and cut claimant’s common bile duct instead of his cystic duct. As a result, claimant suffered various complications which necessitated several additional hospital visits and weekly follow-up visits to the Hospital’s clinic. On September 8, 2006, the claimant underwent reconstructive surgery to create a new common bile duct. Claimant alleges, inter alia, that defendant was negligent in its supervision of its employees at the Hospital and in failing to properly identify claimant’s relevant anatomy during the surgical procedure.

It is well settled that “[t]he Court of Claims is vested with broad discretion to grant or deny an application for permission to file a late claim” (Matter of Brown v State of New York, 6 AD3d 756, 757 [3d Dept 2004]). In determining whether relief to file a late claim should be granted the Court must take into consideration the factors set forth in Court of Claims Act § 10(6) (Bay Terrace Cooperative Section IV, Inc. v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979 [1982]). The factors are not necessarily exhaustive, nor is the presence or absence of any particular one controlling (id.). Those factors are whether the delay in filing the claim was excusable; whether the defendant had notice of the essential facts constituting the claim; whether the defendant had an opportunity to investigate; whether the defendant was substantially prejudiced; whether the claim appears to be meritorious and whether the claimant has any other available remedy. A proposed claim to be filed, containing all of the information set forth in CCA § 11, shall accompany any late claim application.

Claimant does not offer any legally acceptable excuse for the delay in the filing of his claim. However, lack of an acceptable excuse, alone, is not an absolute bar to a late claim application (Matter of Carvalho v State of New York, 176 AD2d 317 [2d Dept 1991]). A reasonable excuse for untimely service is only one of several factors taken into consideration by the Court when considering whether to allow late filing of a claim and is not by itself determinative.

The next three factors, notice, an opportunity to investigate and prejudice are interrelated and as such will be considered together. Claimant argues that the alleged medical error was discovered less than two weeks after his surgery when defendant’s agents performed an endoscopic x-ray which showed that the common bile duct and not the cystic duct had been cut during the surgery. Defendant’s agents also treated claimant for the complications which arose from the initial surgery and performed the surgery to repair the common bile duct. The Court also notes that defendant was put on notice of the claim itself when the original claim was served on April 13, 2007. Additionally, the Court must point out that defendant was in possession of claimant’s medical records. While it is true that defendant was not put on notice by the mere possession of the records (Caruso v County of Westchester, 220 AD2d 746 [2d Dept 1995]), defendant is not offering any specifics as to how it is or has been substantially prejudiced by the delay in filing of this claim (Barnes v New York City Housing Authority, 262 AD2d 46 [1st Dept 1999]; Butler v Town of Smithtown, 293 AD2d 696 [2d Dept 2002]). Additionally, in the ordinary and regular course of hospital treatment and record keeping, any pertinent medical records must have been preserved for a much longer period of time than the delay here (see 10 NYCRR §§ 405.10(a)(4) and 405.10(b)(2)(iv)). Thus, after considering all the circumstances, the Court finds that these factors weigh in claimant’s favor.

The most significant issue to be considered is that of merit. To permit the filing of a legally deficient claim would be an exercise in futility (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]).

In order for a claim to “appear to be meritorious”: (1) it must not be patently groundless, frivolous, or legally defective, and (2) the court must find, upon a consideration of the entire record, including the proposed claim and any affidavits or exhibits, that there is reasonable cause to believe that a valid cause of action exists. ...[T]he court need only determine whether to allow the filing of the claim, leaving the actual merits of the case to be decided in due course. While this standard clearly places a heavier burden on a claimant who has filed late than upon one whose claim is timely, it does not, and should not, require him to definitively establish the merits of his claim, or overcome all legal objections thereto, before the court will permit him to file (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 11 [Ct Cl 1977]).

In order to establish the appearance of merit in a medical malpractice claim, claimant must set forth that defendant departed from the accepted standard of medical care, and that such a departure was a proximate cause of the injury (Mullally v State of New York, 289 AD2d 308 [2d Dept 2001]). General allegations of medical malpractice that are unsupported by competent evidence establishing the essential elements are insufficient (Torns v Samaritan Hosp., 305 AD2d 965, 966 [3d Dept 2003]). “[E]xpert medical evidence clearly is required to demonstrate that the diagnosis and treatment rendered to claimant by state personnel departed from accepted medical practices and standards” (Matter of Perez v State of New York, 293 AD2d 918, 919 [3d Dept 2002]).

Claimant has set forth through the affirmation of David J. Ducore, M.D. that defendant departed from the accepted standard of medical care, and that such a departure was a proximate cause of the injury. Accordingly, the Court finds that claimant has established, for the purposes of this motion, that his claim of medical malpractice is meritorious.

Finally, although not raised in the papers, it appears as though claimant has a viable action against individual physicians in Supreme Court.

Based upon the foregoing and having considered the statutory factors enumerated in Court of Claims Act §10(6), claimants’ motion to file a late claim is granted.

Accordingly, within sixty (60) days of the date this decision and order is filed, claimants shall file and serve the proposed claim, together with a payment of the appropriate filing fee, pursuant to Court of Claims Act §§ 11 and 11-a.

November 15, 2007
Hauppauge, New York

Judge of the Court of Claims

[1].Unless otherwise specified, all references to “claimant” shall refer to Bernard Newberg since the claim of Linda Newberg is derivative.