New York State Court of Claims

New York State Court of Claims

ROBERTS v. THE STATE OF NEW YORK and ROSWELL PARK CANCER INSTITUTE CORPORATION, #2008-034-522, Claim No. 114651, Motion Nos. M-74456, CM-74521


Synopsis


Notice of intention deemed to be a General Municipal Law § 50-e notice of claim in a claim against Roswell Park Cancer Institute Corporation. Motion to serve late notice of claim is granted.

Case Information

UID:
2008-034-522
Claimant(s):
JAMES T. ROBERTS and JUDITH A. ROBERTS, Individually, and as Administrator and Administratrix of the Estate of Allison M. Roberts
Claimant short name:
ROBERTS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK and ROSWELL PARK CANCER INSTITUTE CORPORATION
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114651
Motion number(s):
M-74456
Cross-motion number(s):
CM-74521
Judge:
MICHAEL E. HUDSON
Claimant’s attorney:
THE BALLOW LAW FIRM
BY: JOHN E. BALLOW, ESQ., andROBYN L. BLANCHARD, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO
New York State Attorney General
BY: RICHARD B. FRIEDFERTIG, ESQ.
Assistant Attorney General

For Defendant Roswell Park Cancer Institute Corporation: GIBSON, McASKILL & CROSBY, LLP
BY: JENNIFER L. NOAH, ESQ.
Third-party defendant’s attorney:

Signature date:
June 12, 2008
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The within motions have evolved since their initial filings. Claimants now expressly seek leave to serve a late notice of claim solely against Defendant Roswell Park Cancer Institute Corporation (“Roswell Park”) pursuant to General Municipal Law § 50-e (5), and/or to allow the

“notice of intention to make a claim” previously served in this matter to be deemed a notice of claim, and the claim filed and served in reliance thereon be deemed valid, nunc pro tunc. Roswell Park opposes that application on its merits, and has cross-moved to dismiss the claim, in whole or in part. Claimants have withdrawn any requests for relief against Defendant State of New York, and all parties have now stipulated to discontinue the claim as against the State.

On consideration the Court will grant Claimants’ motion, and deny Roswell Park’s cross-motion.

The Court has reviewed the following documents:

1. Claim, verified December 19, 2007, filed December 27, 2007;

2. Notice of Motion, dated December 21, 2007, filed December 27, 2007;

3. Affidavit in Furtherance of Plaintiffs’ Request to File a Late Claim of John E. Ballow, sworn to December 21, 2007, with attached exhibits and affidavit of Gary Ian Weinberger, M.D., sworn to December 22, 2007, and attached exhibits;

4. Affidavit of James T. Roberts in Support of Motion to File Claim, sworn to December 19, 2007;

5. Memorandum of Law in Furtherance of Claimants’ Request to File a Late Claim, dated December 21, 2007;

6. Affidavit in Opposition to Motion to Late File of Richard B. Friedfertig, sworn to January 10, 2008, filed January 11, 2008;

7. Cross Notice of Motion to Dismiss the Claim, dated January 29, 2008, filed January 31, 2008;

8. Affidavit of Jennifer L. Noah, sworn to January 29, 2008, with attached exhibits;

9. Affidavit in Opposition to Defendants’ Motion to Dismiss Claim of Robyn L. Blanchard, sworn to February 19, 2008, filed February 20, 2008, with attached exhibits;

10. Reply Affidavit in Furtherance of Claimants’ Motion to Serve a Late Notice of Claim of Robyn L. Blanchard, sworn to February 27, 2008, filed February 29, 2008, with attached exhibit;

11. Reply Affidavit of Jennifer L. Noah, sworn to February 28, 2008, filed March 3, 2008;

12. Letter of Robyn L. Blanchard, dated March 7, 2008, with attachments;

13. Stipulation of Discontinuance, dated March 31, 2008, filed April 17, 2008.

Claimants seek to recover for the alleged medical malpractice of employees of Roswell Park in the treatment rendered to their daughter, Allison Roberts, which they contend led to their daughter’s death. It is their position that when Ms. Roberts arrived at Roswell Park for scheduled outpatient chemotherapy treatment on October 12, 2006, she was anemic, bleeding vaginally, had a high white-blood count and elevated heartbeat, and at one point collapsed in a hospital bathroom. According to Claimants, hospital personnel provided their daughter a blood transfusion, and determined to delay chemotherapy until the next day, but then discharged her over her objection, and before her condition had stabilized. They claim that upon her return home their daughter’s bleeding continued, and she lost consciousness later that evening. Although an ambulance was summoned at 11:00 p.m., Ms. Roberts could not be revived, and was pronounced dead on the early morning of October 13, 2006.

On December 13, 2006, Claimants were granted Limited Letters of Administration for their daughter’s estate. Thereafter, on February 22, 2007, they served a “Notice of Intention to Make a Claim,” verified December 28, 2006,[1] upon the Attorney General’s Office and a deputy general counsel for Roswell Park.[2] The notice of intention identified causes of action for Ms. Roberts’ personal injuries and wrongful death, and expressly referenced Court of Claims Act

§§ 10 and 11, as well as General Municipal Law § 50-e. On December 27, 2007, Claimants filed claim No. 114651 with the Clerk of the Court, alleging causes of action against the State and Roswell Park for their daughter’s personal injuries and wrongful death. They served that pleading upon the Attorney General and Roswell Park on December 27 and 31, 2007, respectively. Contemporaneous with the filing and service of the claim the Roberts also filed and served their initial motion papers herein. Although they identified their motion as one seeking permission to file a late claim, without further amplification, the affidavit in support of that motion specifically cited General Municipal Law § 50-e (6) and Public Authorities Law §§ 3567 and 2980 as the statutory bases for the requested relief, rather than the late claim provisions of Court of Claims Act § 10 (6) (see Affidavit in Furtherance of Plaintiffs’ Request to File a Late Claim of John E. Ballow, sworn to December 21, 2007, at paragraphs 8, 11, 12, 15). In response the State filed and served a brief affidavit in opposition, noting Claimants’ failure to append a copy of their proposed claim, as required in such applications pursuant to Court of Claims Act § 10 (6), and disputing the liability of the State for any tortious conduct of Roswell Park, in light of the Legislature’s enactment of Title 4 of Public Authorities Law article 10-C in 1997.[3] Roswell Park separately filed and served a cross-motion, urging the denial of the request for late claim relief, as well as dismissal of the claim. In seeking dismissal Roswell Park advanced several arguments: that it was never served with a “notice of claim,” required as a condition precedent to the commencement of litigation against the hospital under Public Authorities Law §§ 3567 (1) and 2980; that Claimants had identified their motion as one seeking late claim relief, rather than leave to serve a late notice of claim; that any effort to deem their notice of intention to be a notice of claim should be rejected as unauthorized, and as deficient;[4] and that even if the notice of intention could be deemed a notice of claim, it would nevertheless be untimely with respect to the cause of action for Ms. Roberts’ personal injuries. Roswell Park also challenged the merits of Claimants’ application, as it addressed questions of excuse, notice and prejudice to the hospital.

In later submissions Claimants expressly requested leave to serve a late notice of claim under General Municipal Law § 50-e (5) (see Affidavit in Opposition to Defendants’ Motion to Dismiss Claim of Robyn L. Blanchard, sworn to February 19, 2008). They have tendered a proposed notice of claim in conjunction therewith (see id., Exhibit C).

In the course of oral argument on March 5, 2008, Claimants urged that they be afforded leave to serve a late notice of claim under section 50-e (5), and that the notice of intention previously served be deemed a notice of claim. They withdrew any request for “late claim” relief against the State or Roswell Park, whether pursuant to Court of Claims Act § 10 (6) or General Municipal Law § 50-e (5). Roswell Park, in turn, agreed to address the merits of Claimants’ request for leave to serve a late notice of claim under section 50-e (5), notwithstanding its prior objections. At the conclusion of argument the Court reserved decision on the various requests for relief. Several weeks later the parties entered into a stipulation of discontinuance under which Claimants withdrew claim No. 114651 to the extent asserted against the State. The Court will deem that stipulation, dated and ordered by this Court on March 31, 2008, as a withdrawal of Claimants’ related application for late claim relief against the State, since the discontinuance of their claim against that Defendant was expressly made with prejudice.

Before it addresses relief under section 50-e (5) the Court will first grant Claimants’ request that the notice of intention served on February 22, 2007 be deemed a notice of claim. General Municipal Law § 50-e (6) allows for good-faith mistakes, omissions, irregularities or defects within a notice of claim that do not pertain to the manner or time of service, to be corrected, supplied or disregarded, in the absence of prejudice to the other party, and in at least one prior circumstance the Court of Claims has relied upon that provision to deem a notice of intention served upon Roswell Park to constitute a notice of claim (see Przybylak v Roswell Park Cancer Institute Corp., Ct Cl, July 7, 2006, Moriarty, J., UID No. 2006-037-016, Motion No.

M-71718).[5] Here, the hospital concedes that no prejudice resulted from the mischaracterization of the notice, and no longer urges any objection to the sufficiency of the allegations therein. Claimants’ good faith in addressing the unique commencement procedures in litigating a claim against Roswell Park is evident in their express reference within the notice of intention to both Court of Claims Act §§ 10 and 11 and General Municipal Law § 50-e. The Court, therefore, will deem the notice served on February 22, 2007, to constitute a notice of claim, without need for amendment. That determination will impact on both Claimants’ motion for leave to serve a late notice of claim, and Defendant’s cross-motion to dismiss, as discussed below.

Next, the Court will grant the application for leave to serve a late notice of claim upon Roswell Park. Public Authorities Law § 3567 (1) compels the service of a notice of claim pursuant to General Municipal Law § 50-e as a condition precedent to the prosecution of various tort claims against Roswell Park. Section 3567 (1), together with Public Authorities Law § 2980, similarly compel the service of a notice of claim as a condition precedent to the commencement of an action for wrongful death. General Municipal Law § 50-e (1) (a) specifies that in tort claims the notice of claim is to be served within 90 days after the matter arises, and in wrongful death claims it is to be served within 90 days of the appointment of an estate representative. Relief from the failure to timely serve a notice of claim upon the hospital is governed by General Municipal Law § 50-e (5), and not Court of Claims Act § 10 (6) (Matter of Tyson v Roswell Park Cancer Inst. Corp., 4 Misc 3d 556 [2003]). Three key factors have been identified as among those to be weighed in determining whether to grant such discretionary relief: whether Claimants have shown a reasonable excuse for the delay; whether Roswell Park had actual or constructive notice of the essential facts constituting the claim within 90 days of its accrual, or a reasonable time thereafter; and whether the delay would substantially prejudice the hospital in maintaining its defense (see Nationwide Ins. Co. v Village of Alexandria Bay, 299 AD2d 855, 856 [2002]; Hilton v Town of Richland, 216 AD2d 921 [1995]). The appearance of merit, a significant factor in determining a late claim application against the State pursuant to Court of Claims Act § 10 (6), is only to be considered in a review under General Municipal Law § 50-e (5) when the claim is alleged to be “patently meritless” (Weiss v City of New York, 237 AD2d 212, 213 [1997]). Although Roswell Park has not challenged the application as lacking in merit, the affidavit of Gary Ian Weinberger, M.D., tendered by Claimants, supports that the proposed claim is not patently meritless.

The notice of intention served on February 22, 2007, has now been deemed a notice of claim. Since Claimants were appointed representatives of their daughter’s estate on December 13, 2006, less than 90 days prior to such service, their notice was timely with respect to their cause of action for wrongful death. Conversely, the notice was untimely with respect to their claim for their daughter’s personal injuries, since that cause of action accrued at the time of her hospital treatment on October 12, 2006, some 133 days prior to such service. For that reason the motion for leave to serve a late notice of claim impacts solely upon the cause of action for personal injuries.

As an excuse for their failure to serve a notice of claim within 90 days of their daughter’s treatment and discharge from the hospital Claimants note that they were not appointed as representatives of the estate until December 13, 2006, after which they required additional time to obtain medical records and an expert’s review of the file. That explanation is of limited merit, since the notice of claim was signed and notarized by Claimants in their representative capacities on December 28, 2006, some 77 days following Ms. Roberts’ treatment and discharge, and they have failed to specifically address their failure of service over the ensuing 13 days before the statutory time period expired (see Matter of Dickerson v New York City Hous. Auth., 245 AD2d 371, 372 [1997] [rejecting excuse of physical and emotional distress where claimant had executed notice of claim prepared by his attorney within 90 days of accrual])[6]. Nevertheless, the absence of a sufficient excuse is not fatal where the relevant public corporation possessed actual notice of the facts that constitute the claim, and there is no compelling showing of prejudice attributed to the delay (see Matter of Blair v County of Ontario, 295 AD2d 933 [2002]; Matter of Henderson v Town of Van Buren, 281 AD2d 872, 873 [2001]; Weiss, 237 AD2d at 213).

Regarding notice, on the submissions Roswell Park necessarily would have possessed actual knowledge of its treatment and discharge determinations at the point they occurred. As alleged, it was the hospital’s own employees who attended to Ms. Roberts in the hours that preceded her death. That knowledge, however, does not constitute “actual knowledge of the essential facts constituting the claim” as contemplated under section 50-e (5), since the hospital’s treatment records lack any suggestion that Roswell Park may have been responsible for Ms. Roberts’ unstable condition, or that it improperly discharged her (see Matter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d 138 [2008] [addressing meaning of “actual knowledge of the essential facts” under section 50-e (5)]). Notwithstanding the above, Claimants’ service of a notice of claim on February 22, 2007, worked to provide Roswell Park with actual knowledge of a contemplated claim for personal injuries within a reasonable time – some 43 days – following the expiration of the 90-day statutory period. The Court understands that authority supports that the untimely and unauthorized service of a notice of claim should be deemed a nullity in weighing notice in a section 50-e (5) application (see Mack v City of New York, 265 AD2d 308, 309 [1999], lv denied 94 NY2d 763 [2000] [notice served after expiration of 90-day period and without court approval is nullity, and cannot be asserted to establish actual knowledge]; but compare Pearson v New York City Health & Hosps. Corp. (Harlem Hosp. Ctr.), 43 AD3d 92, 94 [2007]), affd 10 NY3d 852 [2008] [affording effect to late and unauthorized service of notice of claim in weighing relief under section 50-e (5)]). Here, in contrast to Mack, the notice of claim was timely served with respect to a portion of the relief sought, and for that reason cannot be treated as a legal nullity. Moreover, even if the Court were to deem that portion of the notice of claim addressing Ms. Roberts’ personal injuries to be a nullity, any investigation conducted in response to the timely notice concerning the anticipated wrongful death claim would necessarily have extended to a review of the related events that occurred in the hours that preceded it.

So also on the submissions the Court cannot find that Roswell Park has been substantially prejudiced in its defense of the matter on the merits. As Claimants have noted, the conduct in question was performed and recorded by the hospital’s employees. The records of treatment remain within the hospital’s possession, and Claimants have made some demonstration of continued witness availability (see Affidavit of Robyn L. Blanchard, sworn to February 19, 2008, paragraphs 12, 15 [the two treating physicians remain licensed in this State, with one still holding privileges at Roswell Park]). The hospital’s conclusory response is insufficient to raise any true issue of delay-related prejudice.

To the extent that service was properly effected upon Roswell Park on February 22, 2007, the Court will deem the late notice of claim timely served nunc pro tunc (see Matter of LaMonte v County of Broome, 20 AD3d 756 [2005]; Hale v Webster Cent. School Dist., 12 AD3d 1052 [2004]; Weiss, 237 AD2d at 212-213). In the alternative, Claimants remain free to serve the proposed notice of claim, since General Municipal Law § 50-e (5) provides, in relevant part, that an application for leave to serve a late notice may be made even after the commencement of the action against the public corporation. The Court cautions Claimants that any post-commencement service of a notice of claim might impact on the validity of the pending claim (see Perkins v City of New York, 26 AD3d 483, 485 [2006] [grant of leave to serve notice of claim subsequent to commencement did not negate requirement within General Municipal Law § 50-i (1) (b) that the pleading allege that at least 30 days elapsed following such service, and that adjustment or payment had been neglected or refused]).

Roswell Park’s cross-motion to dismiss the claim will be denied. The Court has deemed the notice of intention of February 22, 2007 to constitute a notice of claim, such that Claimants timely interposed that condition precedent to the pursuit of their cause of action for wrongful death. The Court will decline to dismiss that portion of the claim that seeks recovery for personal injuries, in light of its grant of relief pursuant to section 50-e (5), nunc pro tunc.

Based upon the above, it is

ORDERED, that the notice of intention served February 22, 2007 is deemed a notice of claim; and it is further

ORDERED, that Claimants’ motion to serve a late notice of claim upon Roswell Park is granted pursuant to Public Authorities Law §§ 3567 (1) and 2980, and General Municipal Law § 50-e (5); and it is further

ORDERED, that the notice of intention, now deemed a notice of claim, as served February 22, 2007, is further deemed timely served with respect to the cause of action for wrongful death, and timely served nunc pro tunc with respect to the cause of action for personal injuries; and it is further

ORDERED, that in the alternative Claimants are granted leave to serve the proposed notice of claim, with such service to be effected within 20 days of the date of the filing hereof, and without determining any further obligation that might arise pursuant to General Municipal Law § 50-i (1) (b), by reason thereof; and it is further

ORDERED, that Roswell Park’s motion to dismiss claim No. 114651 is denied; and it is further

ORDERED, that nothing herein shall prejudice any right by Roswell Park to conduct an examination of Claimants pursuant to General Municipal Law § 50-h.


June 12, 2008
Buffalo, New York

HON. MICHAEL E. HUDSON
Judge of the Court of Claims




[1]. Claim, Exhibit A; see also: Affidavit in Furtherance of Plaintiffs’ Request to File a Late Claim of John E. Ballow, sworn to December 21, 2007, Exhibit A [copies of claim and notice of intention]; Affidavit of Jennifer L. Noah, sworn to January 29, 2008, Exhibit A.
[2]. The assertion at oral argument that the Roberts served their notice of intention prior to being appointed administrators of their daughter’s estate is mistaken (see Affidavit in Opposition to Defendants’ Motion to Dismiss Claim of Robyn L. Blanchard, sworn to February 19, 2008, Exhibit B [Certificate of Appointment of Administrators]).
[3]. The “Roswell Park Cancer Institute corporation act,” effective October 14, 1997.
[4]. At oral argument Roswell Park withdrew its assertion that under Kolnacki v State of New York, 8 NY3d 277 (2007), the notice of intention must be deemed deficient as a notice of claim for failure to identify the amount of damages claimed. In that regard the Court notes that Kolnacki addressed the pleading requirements for a claim, rather than a notice of intention, which does not require that items of damage or injuries, or the total sum claimed be set forth (see Court of Claims Act § 11 [b]).
[5]. Unpublished decision and orders are available on the Court of Claims website at www.nyscourtofclaims.state.ny.us.
[6]. The Court rejects the assertion that the Roberts also delayed action to await the disposition of an investigation of the incident by the New York State Department of Health (see Affidavit in Furtherance of Plaintiffs’ Request to File a Late Claim of John E. Ballow, sworn to December 21, 2007, at paragraph 15). That complaint was not initiated until November of 2007, long after the 90-day statutory period had expired, and Claimants failed to explain why they waited more than one year after their daughter’s death before they made that complaint. So also, they have failed to explain why they needed to delay action to preserve their right to sue while an investigation was contemplated or pending.