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
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
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,
, 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 ). 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
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.