New York State Court of Claims

New York State Court of Claims

KLUG v. THE STATE OF NEW YORK, #2008-045-001, Claim No. 113534, Motion Nos. M-74095, CM-74171


Case Information

In the Matter of the Application of CHRISTOPHER KLUG
1 1.The caption has been amended, sua sponte, to reflect the State of New York as the proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended, sua sponte, to reflect the State of New York as the proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant’s attorney:
Amideo, Nicholas, Guzzone & Associates, P.C.By: Sara A. Toler, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo, Attorney GeneralBy: Mary Y.J. Kim, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 10, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered by the Court on this motion: Claimant’s Notice of Motion, Affirmation in Support with annexed Exhibits A-K, Defendant’s Notice of Cross-Motion to Dismiss, Affirmation in Support of Cross-Motion and in Opposition to Claimant’s Motion, Claimant’s Affirmation in Opposition to Cross-Motion.

Claimant, Christopher Klug, has brought this motion seeking an order granting leave to file a late claim pursuant to Court of Claims Act § 10(6). Defendant, the State of New York, has moved to dismiss the claim in this matter which was filed on April 4, 2007 and assigned claim number 113534 by the Chief Clerk of the Court of Claims.

Claimant alleges in the filed claim that on January 12, 2007, he was a patient at defendant’s facility, Stony Brook University Medical Center (Stony Brook), when he was injured while attempting to use the bathroom. Specifically he states that he was injured as a result of the malpractice and negligence of the defendant in failing to put up bed rails, properly monitor and attend to claimant’s medical condition and permitting claimant to use bathroom facilities unattended. Claimant continues that defendant failed to follow proper guidelines and medical orders for the safety and protection of claimant as a patient.

Defendant seeks dismissal of the filed claim since the claim was not timely served upon defendant.

The Court of Appeals has long held that “suits against the State are allowed only by the State’s waiver of sovereign immunity and in derogation of the common law [and that because of this] statutory requirements conditioning suit must be strictly construed” (Dreger v New York State Thruway Authority, 81 NY2d 721, 724 [1992]). Accordingly, claimants who have not met the service requirements of the Court of Claims Act have not properly commenced their actions (Lichtenstein v State of New York, 93 NY2d 911 [1999]). Claimant concedes that he failed to serve his claim in a timely manner as required by CCA § 10. Consequently, this Court has no jurisdiction over the filed claim and must dismiss the claim numbered 113534.

In anticipation of the dismissal, claimant has brought the present motion seeking permission to file a late claim in this matter.

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 Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979 [1982]). 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 determinative.

The next three factors, notice, an opportunity to investigate and prejudice are interrelated and as such will be considered together. Claimant explains that he was initially admitted to Stony Brook on January 3, 2007 after being seriously injured in a motor vehicle accident. In the ensuing days, claimant underwent numerous operations at Stony Brook. On January 10, 2007, claimant was placed in bilateral wrist restraints after he attempted to pull out his foley catheter. Despite these restraints claimant was able to pull off his left hip dressing, foley catheter and sutures. Claimant alleges that he was then placed on a “safety watch” by his physician and that he was supposed to be monitored “as per nursing policy and protocol.” Claimant continues that on January 12, 2007 at 2:00 a.m. he slipped and fell on his left side while getting off the commode placed near the foot of his bed. Claimant contends that as a result of the fall he suffered a minimally displaced left ulna shaft fracture and a dislocation of the left hip as well as a fracture of the left hip. These injuries were subsequently treated at Stony Brook. Claimant argues that defendant had actual notice of the incident immediately after it occurred and that an investigation was conducted by defendant after the fall. Claimant points to defendant’s hospital records as evidence that the incident was documented, investigated and that claimant was treated for the injuries he sustained as a result of the fall at Stony Brook.

While it is true that defendant was not put on notice by the mere possession of the hospital records (Bucknor v New York City Health & Hosps. Corp., 44 AD3d 811 [2d Dept 2007]), 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 Hous. Auth., 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]). Most importantly, the medical records evince that the hospital staff was present supervising claimant at the time of the fall, the incident was documented and the medical staff treated claimant’s resulting injuries. Consequently, defendant acquired notice of the essential facts underlying the claim (Williams v Nassau County Med. Ctr., 6 NY3d 531 [2006]). 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, 11-12 [Ct Cl 1977]).

Claimant described the circumstances surrounding his fall by stating that he recalled two female nurses helping him out of his bed and onto the commode located at the foot of his bed (Cl Exh J). “The nurses then drew the curtain and left” (Cl Exh J). He continues that when he was finished using the commode he attempted to stand but was unable to do so and fell to the ground (Cl Exh J). After the fall he noticed the “one to one” aide seated near the bed of his roommate (Cl Exh J). The “one to one” aide then helped claimant up off of the ground and into his bed (Cl Exh J). Claimant stated that as a result of the fall he sustained a fracture of his left ulna as well as an injury to his left hip (Cl Exh J).

Claimant’s fiancee, Stacy Touloumis, stated that claimant had been put on a “safety watch” at the hospital (Cl Exh K). Ms. Touloumis did not explain who actually determined that claimant should be put on a “safety watch” nor did she explain what a “safety watch” actually entails. She did advise the Court that claimant was assigned a “one to one” aide “to watch Chris at all times” and that she was informed that claimant “was not to get out of bed for any reason whatsoever” while he was in “SICU” (Cl Exh K). Ms. Touloumis did not identify who assigned the aide or who provided her with this information. Ms. Touloumis stated that on January 11, 2007 claimant was transferred from the “SICU” to a step down unit but that he was still on the “safety watch”(Cl Exh K).

Claimant submits as his proposed claim a copy of the claim filed on April 4, 2007. The proposed claim provides details of the claim as follows:

“Claimant a patient with multiple injuries and head trauma while attempting to use the bathroom was caused to fall and sustain serious bodily injuries as a result of the malpractice and negligence of the defendant, STONYBROOK UNIVERSITY MEDICAL CENTER; in failing to put up bed rails, properly monitor and attend to CHRISTOPHER KLUG’S medical condition and allowing and permitting the claimant, CHRISTOPHER KLUG, to use the bathroom facilities unattended and in failing to follow proper guidelines and medical orders for the safety and protection of CHRISTOPHER KLUG as a patient. As a result of said malpractice and negligence, claimant, CHRISTOPHER KLUG sustained serious bodily injuries” (Cl Exh G).

Defendant argues that since the claim is based on medical malpractice an expert affidavit in support of the claim is necessary for the Court to determine merit. In response claimant states that his claim is more akin to a claim for ordinary negligence than medical malpractice and that a determination of merit can be assessed without the necessity of a medical affidavit.

“‘The distinction between ordinary negligence and malpractice turns on whether the acts or omissions complained of involve a matter of medical science or art requiring special skills not ordinarily possessed by lay persons or whether the conduct complained of can instead be assessed on the basis of the common everyday experience of the trier of facts’ (Russo v Shah, 278 AD2d 474, 475 [2000] [internal quotation marks and citations omitted] ). “[W]hen the challenged conduct ‘constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician,’ ” the claim sounds in medical malpractice rather than simple negligence (Weiner v Lenox Hill Hosp., 88 NY2d 784, 788 [1996] quoting Bleiler v Bodnar, 65 NY2d 65, 72 [1995])” (Glasgow v Chou, 33 AD3d 959, 961 [2d Dept 2006]).

Claimant argues that a risk of harm was identified by defendant and that as a result claimant was placed on a safety watch. Claimant continues that the failure to follow through with the correct procedures of a safety watch caused the claimant to fall and to sustain further injuries.

Claimant’s allegations are essentially challenging defendant’s assessment of claimant’s supervisory and treatment needs as well as the failure of defendant’s staff to follow the proper procedures associated with a safety watch (see Scott v Uljanov, 74 NY2d 673 [1989]). This Court finds that these allegations fall squarely within the realm of claims sounding in medical malpractice (Caso v St. Francis Hosp., 34 AD3d 714 [2d Dept 2006]; Fox v White Plains Med. Ctr., 125 AD2d 538 [2d Dept 1986]). Claimant has not provided the Court with a qualified expert opinion as to the relevant standard of care and whether defendant had deviated from that standard. Consequently, claimant’s failure to submit an expert affidavit in support of his allegations constrains this Court from determining that his claim is meritorious (Glasgow v Chou, 33 AD3d 959 [2d Dept 2006]; see also Hughes v State of New York, 25 AD3d 800 [2d Dept 2006]).

Finally, the Court notes that neither party addressed the issue of whether or not claimant had a viable remedy elsewhere. Since claimant failed to deny that an alternate remedy was available the Court determined this factor against claimant.

Based upon the foregoing and having considered the statutory factors enumerated in Court of Claims Act §10(6), the Court finds that claimant’s motion to file a late claim is denied. This denial is without prejudice to claimant’s ability to file another late claim motion containing an expert affidavit as well as any other documents for the Court’s consideration.

Additionally, for the foregoing reasons, defendant’s cross-motion to dismiss the claim numbered 113534 is granted.

January 10, 2008
Hauppauge, New York

Judge of the Court of Claims