Responding Affirmation of Maureen A. MacPherson, Esq., Assistant Attorney
General, with Exhibits. 5
Carlie Mae Carpenter, the infant daughter of claimants, Jerold J. Carpenter and
Carey Ann Carpenter, was transferred from Oneida Hospital to the State
University of New York University Hospital on June 14, 2006, when she was in
respiratory distress. She remained hospitalized at University Hospital for
approximately one month until her death on July 17, 2006.
Thereafter, claimants served a claim upon the Attorney General and filed this
claim with the Clerk of the Court of Claims on July 16, 2008, seeking damages
for wrongful death and for conscious pain and suffering suffered by Carlie Mae
Carpenter prior to her death. The claim has been assigned Claim No. 115525 by
the Clerk of the Court of Claims. The claim also included a derivative claim by
claimants Jerold J. Carpenter and Carey Ann Carpenter for loss of services,
society and companionship, and for medical expenses incurred on behalf of their
Although they contend that their wrongful death claim has been timely served
and filed, claimants are concerned that the cause of action seeking damages for
the conscious pain and suffering of their daughter was not timely, and they
therefore have made this application seeking late claim relief.
As set forth in the motion papers, Limited Letters of Administration were
issued to claimants Jerold J. Carpenter and Carey Ann Carpenter on February 22,
2008, by the Oneida County Surrogate’s Court.
Pursuant to Court of Claims Act, § 10(2), a claim against the State
seeking damages for wrongful death must be filed with the Clerk of the Court of
Claims and served upon the Attorney General within 90 days of the appointment of
a personal representative of the decedent, unless the claimant within such time
serves upon the Attorney General a Notice of Intention to File a Claim, in which
event the claim must then be served and filed within two years of the death of
the decedent. Pursuant to § 10(2), the claim must in any event be served
and filed within two years after the death of the decedent.
In this particular claim, defendant acknowledges that a Notice of Intention to
File a Claim was personally served on the Attorney General on May 14, 2008,
within 90 days from the appointment of claimants as co-administrators (Exhibit B
to Item 5). As set forth above, claimants served their claim (Claim No. 115525)
upon the Attorney General and filed their claim with the Clerk of the Court of
Claims within two years of the death of claimants’ decedent. Therefore,
claimants have satisfied the statutory requirements of § 10(2), in that
they served a Notice of Intention to File a Claim within 90 days after their
appointment, and served and filed their claim within two years from the date of
death of their daughter. Accordingly, the aspect of the claim seeking damages
for wrongful death has been timely served and filed.
It is well established, however, that the provisions of Court of Claims Act
§ 10(2), pertaining to wrongful death claims, do not apply to a survival
action seeking to recover for a decedent’s conscious pain and suffering
(Pelnick v State of New York, 171 AD2d 734). Instead, such actions are
governed by Court of Claims Act § 10(3), which requires that a claim be
served and filed, or in the alternative, that a Notice of Intention be served,
within 90 days after accrual of the cause of action.
However, Court of Claims Act § 10(5) provides that if a claimant is under
a legal disability, the claim may be presented at any time within two years
after the disability has been removed. In this particular matter, Carlie Mae
Carpenter was clearly under the legal disability of infancy when her claim
accrued. Assuming that this disability was removed at her death, claimants,
pursuant to § 10(5), had a period of two years to serve and file their
claim (Barrett v State of New York, 161 AD2d 61 affd 78 NY2d
1111). As previously stated herein, the claim was served and filed within two
years, and therefore leave of the Court (in the form of this late claim
application), is not required.
As previously stated herein, however, claimants have also asserted a derivative
claim seeking damages for loss of services, society and companionship, as well
as for medical expenses which they incurred on behalf of their daughter. The
provisions of § 10(2) and the tolling provisions of § 10(5) do not,
however, insure their benefit (Blatt v State of New York, 19 Misc 2d 3),
and consequently their derivative claim is not timely and must therefore be
considered under the late claim provisions set forth in Court of Claims Act
In order to determine an application for permission to serve and file a late
claim, the Court must consider, among other relevant factors, the six factors
set forth in § 10(6) of the Court of Claims Act. The factors set forth
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 file and the failure to serve upon
the Attorney General a timely claim or notice of intention to file a claim; and
(6) whether any other remedy is available. The Court is afforded considerable
discretion in determining whether to permit the late filing of a claim (see,
Matter of Gavigan v State of New York, 176 AD2d 1117).
With regard to excuse, claimants acknowledge that they were unaware of the 90
day time period within which they were required to serve and file a claim or
serve a notice of intention to file a claim. Ignorance of the law, however, is
not an excuse, and this factor therefore weighs against claimants (Matter of
Robinson v State of New York, 35 AD3d 948).
The factors of notice, opportunity to investigate, and substantial prejudice
will be considered together.
In this particular matter, since the death of claimants’ infant daughter
occurred at University Hospital, this Court, for purposes of considering this
application, assumes that an investigation was conducted by hospital officials
into the circumstances surrounding her death. As a result, the State clearly
had notice of a potential claim, and not only had an opportunity to investigate
the circumstances underlying the claim, but in all likelihood actually conducted
such an investigation. In any event, the State certainly has possession of all
medical records concerning the care received by claimants’ daughter during
her hospitalization at University Hospital. For all of these reasons, the Court
finds that the State will not be substantially prejudiced should this
application be granted.
In order to
establish a meritorious cause of action, it is the burden of the claimant to
show that the proposed claim is not patently groundless, frivolous, or legally
defective and that there is reasonable cause to believe that a valid claim
exists (Matter of Santana v New York State Thruway Authority
, 92 Misc 2d
In this particular matter, claimants have submitted the Affidavit of Bernard R.
Lerner, M.D., (Exhibit A to Item 3) in which he opines that University Hospital
personnel, agents and officers deviated from good and accepted standards of
practice in the treatment rendered to claimants’ infant daughter. Based
on this Affidavit, the Court finds that a meritorious claim has been asserted by
Although not specifically addressed, claimants may have another available
remedy directly against physicians and/or other medical personnel who provided
medical care and treatment to their daughter.
The Court may in its discretion place as much or as little weight on any of the
six factors to be considered pursuant to the statute. Under the current law
“[n]othing in the statute makes the presence or absence of any one factor
determinative” (Bay Terrace Coop. Section IV v New York State
Employees’ Retirement System Policemen’s & Firemen’s
Retirement System, 55 NY2d 979, 981) and none of the factors can require
denial as a matter of law.
Upon weighing and considering all of the factors set forth in Court of Claims
Act, § 10(6), it is the opinion of this Court that claimants should be
allowed to pursue their derivative claim along with the timely aspects of their
claim for wrongful death and conscious pain and suffering.
In sum, late claim relief is not necessary for either the wrongful death cause
of action or that aspect of the claim seeking damages for the conscious pain and
suffering of claimants’ daughter. The Court determines that Claim No.
115525 is therefore timely with regard to these two causes of action. The
derivative claim asserted by the parents in Claim No. 115525, however, was not
timely served or filed, and late claim relief for the service and filing of this
claim is hereby granted. Since the Attorney General is entitled to a timely
served claim on all causes of action, claimants are therefore directed to serve
and file a new claim (identical to the proposed claim submitted with this
application) to assure that proper jurisdiction has been obtained.
Accordingly, it is
ORDERED, that Motion No. M-75242 is hereby GRANTED as provided herein; and it
ORDERED, that claimants’ application seeking permission to serve and file
a late claim is hereby granted with respect to the derivative claim asserted by
claimants in their proposed claim, but is otherwise denied as moot; and it is
ORDERED, that claimants are hereby directed to file and serve their claim,
identical to the proposed claim submitted with this motion, within 45 days of
the filing date of this decision and order, in conformance with Sections 11 and
11-a of the Court of Claims Act.