New York State Court of Claims

New York State Court of Claims

CARPENTER v. THE STATE OF NEW YORK, #2008-009-037, Claim No. NONE, Motion No. M-75242


Synopsis


Late claim relief was granted to the claimants for their derivative cause of action asserted in the wrongful death claim brought on behalf of their daughter. Late claim relief for the conscious pain and suffering of their daughter was deemed unnecessary in light of Court of Claims Act § 10(5).

Case Information

UID:
2008-009-037
Claimant(s):
JEROLD J. CARPENTER and CAREY ANN CARPENTER, Individually and as Co-Administrators of the Estate of CARLIE MAE CARPENTER
Claimant short name:
CARPENTER
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-75242
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
BOTTAR LEONE, PLLC
BY: Michael A. Bottar, Esq.,Of Counsel.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General
BY: Maureen A. MacPherson, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
December 23, 2008
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimants have brought this motion seeking permission to serve and file a late claim pursuant to Court of Claims Act § 10(6).

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affidavit in Support by Jerold J. Carpenter and Carey Ann Carpenter, with Exhibit, Affidavit of Michael J. Bottar, Esq., with Exhibit (Affidavit of Bernard R. Lerner, M.D.), Proposed Claim 1-4

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 daughter.

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 § 10(6).

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.[1] 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 1).

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 the claimants.

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 is further

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 further

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.


December 23, 2008
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims




[1]. Additionally, and as previously discussed herein, the Court has determined that the aspects of Claim No. 115525 seeking damages for wrongful death and for conscious pain and suffering have been timely presented, and the State is therefore obligated to defend those aspects of the claim in any event.