New York State Court of Claims

New York State Court of Claims

MELCER v. THE NEW YORK STATE PSYCHIATRIC INSTITUTE, #2008-016-026, Claim No. None, Motion No. M-74426


Late claim motion was denied.

Case Information

JEFFREY B. MELCER and LUCIA SOSA, Co-Administrators of the Estate of JUAN SOSA, deceased
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):

Alan C. Marin
Claimant’s attorney:
The Law Offices of Jeffrey B. Melcer, PLLCBy: Jeffrey B. Melcer, Esq.
Defendant’s attorney:
Andrew M. Cuomo, Attorney GeneralBy: Mary Y.J. Kim, Esq., AAG
Third-party defendant’s attorney:

Signature date:
June 23, 2008
New York

Official citation:

Appellate results:

See also (multicaptioned case)


Claimants Jeffrey B. Melcer and Lucia Sosa move for an order permitting them to file a late claim pursuant to §10.6 of the Court of Claims Act (the “Act”). Mr. Melcer, who is also counsel for claimants, is the co-administrator of the estate of Juan Sosa with Mr. Sosa’s sister, Lucia. The proposed claim alleges that because of psychiatric malpractice committed at New York State Psychiatric Institute, Juan Sosa committed suicide on July 20, 2005.

Claimants explain that on February 9, 2007, approximately one and one-half years after Mr. Sosa’s death, Lucia Sosa contacted Jeffrey Melcer “about investigating the death of her brother to determine if psychiatric malpractice was possibly committed in the treatment of decedent.” See ¶4 of the January 14, 2008 affirmation of Jeffrey B. Melcer (the “Melcer Aff.”).

As Mr. Sosa had been pronounced dead at New York Presbyterian Hospital, Mr. Melcer thereafter made numerous attempts to obtain medical records from that facility, and apparently did not receive the records until the Hon. Emily Jane Goodman of Supreme Court, New York County issued a December 14, 2007 order re same.

The medical records obtained from New York Presbyterian Hospital contain a “Transfer Sheet” which indicates that on May 31, 2005, Mr. Sosa was transferred to another facility. According to claimants, “[n]owhere in [the records] does it say where decedent was transferred.” A review of the Transfer Sheet (see the twenty-second page of exhibit A to the Melcer Aff.) indicates that Juan Sosa was transferred to “PI 4 South.” In any event, claimants explain that they only recently learned from New York Presbyterian that Mr. Sosa had in fact been transferred to New York State Psychiatric Institute. As of the time this motion was made, claimants had not yet received Mr. Sosa’s New York State Psychiatric Institute records, which they requested on January 10, 2008. See exhibit E to the Melcer Aff.

Claimants stated that they filed this motion in order to “[attempt] to ascertain the viability of an action . . .” See ¶11 of the Melcer Aff.
* * *
As an initial matter, it should be noted that to the extent claimants assert a cause of action for wrongful death, the statute of limitations thereon expired on July 20, 2007, two years after Mr. Sosa’s death, and before this motion was made. See EPTL §5-4.1. Section 10.6 of the Act provides that late claim relief is not available after the relevant statute of limitations has expired. However, to the extent that claimants allege conscious pain and suffering, this motion was timely made, as the two and one-half year statute of limitations for medical malpractice expired on January 20, 2008, i.e., after claimants filed their motion on January 15.

In order to determine this motion with respect to the conscious pain and suffering cause of action, six factors enumerated in the Act must be considered: whether (1) defendant had notice of the essential facts constituting the claim; (2) defendant had an opportunity to investigate the circumstances underlying the claim; (3) defendant was substantially prejudiced; (4) claimant has any other available remedy; (5) the delay was excusable and (6) the claim appears to be meritorious. The factors are not necessarily exhaustive, nor is the presence or absence of any particular factor controlling.[1]

With regard to notice, claimants point out that defendant is presumably in possession of Mr. Sosa’s New York State Psychiatric Institute medical records. But if such were sufficient to impute notice for the purpose of the Act, this would mean that in any medical malpractice case, such factor would automatically be satisfied. See Matter of O’Shea v State of New York, Ct Cl filed November 5, 1999 (unreported, motion no. M-59853, Marin, J.), affd 278 AD2d 237, 717 NYS2d 293 (2d Dept 2000). Moreover, there is nothing in the submissions to indicate that defendant had any knowledge of the death Mr. Sosa, who had apparently been released prior to his death. In any event, the aforesaid medical records would offer an opportunity to investigate. As for prejudice, defendant does not raise an argument thereon.

With regard to alternative remedy, if an underlying substantive cause of action obtains, claimant then would likely have a viable lawsuit against one or more individual physicians in Supreme Court. As to excuse, claimants argue that their delay is explained by New York Presbyterian Hospital’s “malfeasance” in producing Mr. Sosa’s medical records. Such is not a recognized excuse for the purposes of the act. Moreover, claimants do not explain why Ms. Sosa waited for a year and a half after her brother’s death to contact counsel.

The remaining factor to be considered is whether the proposed claim appears meritorious. Claimants did not submit a physician’s affirmation of merit. As set forth above, they have not submitted Mr. Sosa’s New York Psychiatric Institute records, and it is unknown when he was released from such facility or the circumstances surrounding his treatment or his release. Such records were requested by claimants on January 10, 2008 (see exhibit E to the Melcer Aff.); defendant’s Affirmation in Opposition was dated March 12, 2008. Claimants submitted no reply papers, which had they done so would have occurred some two months after their request for the records from the Psychiatric Institute.

In view of the foregoing, I cannot find that claimants meet the standard for merit set forth in Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 11, 399 NYS2d 395, 402-03 (Ct Cl 1977): (i) the claim "must not be patently groundless, frivolous, or legally defective" and (ii) upon consideration of the entire record, including the proposed claim and any exhibits or affidavits, "there is reasonable cause to believe that a valid cause of action exists."

Accordingly, having reviewed the submissions[2], IT IS ORDERED that motion no. M-74426 be denied.

June 23, 2008
New York, New York

Judge of the Court of Claims

  1. [1]See Bay Terrace Coop. Section IV, Inc. v New York State Employees’ Retirement Sys. Policemen’s and Firemen’s Retirement Sys., 55 NY2d 979, 449 NYS2d 185 (1982); Scarver v State of New York, 233 AD2d 858, 649 NYS2d 280 (4th Dept 1996).
  2. [2]The Court reviewed the following: claimants’ notice of motion with affirmation in support and exhibits A through F; and defendant’s affirmation in opposition.