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 ). 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 ).
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 ). 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
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] and
405.10[b][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
). 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  [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  quoting Bleiler v Bodnar, 65 NY2d 65, 72 )”
(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 ). 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
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
Additionally, for the foregoing reasons, defendant’s cross-motion to
dismiss the claim numbered 113534 is granted.