New York State Court of Claims

New York State Court of Claims

WHITE v. THE STATE OF NEW YORK, #2009-009-013, Claim No. NONE, Motion No. M-76296


Claimants’ application for late claim relief in this medical malpractice claim was granted.

Case Information

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):

Claimant’s attorney:
BY: James E. Reid, Esq.,Of Counsel.
Defendant’s attorney:
Attorney General
BY: Senta B. Siuda, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
June 2, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Claimants have brought this motion seeking permission to serve and file a late claim.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation in Support, with Exhibits (including Affidavit of Arlen White as Exhibit D and Proposed Claim as Exhibit E) 1,2

Affirmation in Opposition 3

Reply Affirmation 4

In their proposed claim, claimants seek damages for personal injuries suffered by Arlen White based upon allegations of malpractice by medical staff and personnel at the State University of New York Health Science Center University Hospital (“University Hospital”). Specifically, claimants allege that Mr. White underwent surgery for a coronary artery bypass grafting on September 1, 2006, performed by Charles J. Lutz, M.D., and that during this procedure Dr. Lutz improperly connected Mr. White’s left internal mammary artery to a coronary vein, rather than the left anterior descending artery.

The initial inquiry on any application seeking permission to serve and file a late claim is whether the application has been timely made. Pursuant to the provisions of § 10(6) of the Court of Claims Act, the application must be made “at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules.”

Pursuant to the provisions of § 214-a of the CPLR, any action based upon allegations of medical malpractice must be commenced with two years and six months of the act or omission constituting such malpractice. In this particular matter, the surgery on which the claim is based took place on September 1, 2006. This application for late claim relief was filed with the Clerk of the Court of Claims on February 25, 2009, within (barely) two years and six months of that surgery. The statutory reference to Article 2 of the CPLR set forth in § 10(6) of the Court of Claims Act has been interpreted to mean that the motion must be made prior to the expiration of the appropriate statute of limitations, even if the return date of the motion or the date the claim is ultimately served and filed occurs outside of that limitations period (Thompson v State of New York, 258 App Div 758; Johnson v State of New York, 131 Misc 2d 630; Jenkins v State of New York, 119 Misc 2d 144). As a result, this Court finds and concludes that the application herein has been timely made.

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 (Matter of Gavigan v State of New York, 176 AD2d 1117).

With regard to excuse, the only explanation provided in this application is that claimants were never informed that a notice of intention to file a claim or a formal claim was required in order to proceed against the State. Ignorance, however, in and of itself is not a sufficient excuse (Sevillia v State of New York, 91 AD2d 792), and therefore claimants have not presented an acceptable excuse for their failure to timely serve and file this claim.

The intertwined factors of notice, opportunity to investigate, and substantial prejudice will be considered together. Claimants contend that the State had notice of the essential facts constituting this claim, since the alleged malpractice occurred at University Hospital, and all aspects of the medical care rendered to Arlen White were recorded and maintained in hospital records. However, the mere existence of medical records does not satisfy a claimant’s obligation to place the State on notice of the underlying facts of a proposed claim (Conroy v State of New York, 192 Misc 2d 71), and there is no indication in the papers before the Court that the State had any actual notice of this claim until the instant motion was served and filed. Without such notice, there is no evidence that the State had any opportunity to investigate those facts.

Even though the State did not have any prior notice, nor an opportunity to investigate the facts underlying this proposed claim, the existence of medical records should provide the State with a sufficient basis on which to defend this claim, and the Court finds that the State will not be substantially prejudiced should it have to defend this claim.

The next factor, often deemed the most critical, is whether the proposed claim has the appearance of merit. If claimants cannot establish a meritorious claim, it would be an exercise in futility to grant a late claim application (Savino v State of New York, 199 AD2d 254; Prusack v State of New York, 117 AD2d 729). In order to establish a meritorious cause of action, claimants have the burden 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 an application seeking permission to file a late claim based upon allegations of medical malpractice, support in the form of an expert’s affidavit of merit is generally required, since it is only through an affidavit from someone with the qualifications to allege a deviation from generally accepted medical standards that the Court may determine the potential merit of a proposed claim (Schreck v State of New York, 81 AD2d 882; Jolley v State of New York, 106 Misc 2d 550). In support of this application, claimants’ attorney has affirmed that the medical records of Mr. White were reviewed by a Board-Certified cardiac surgeon and that this surgeon opined that the case is meritorious, essentially setting forth information as is usually contained in a CPLR 3012-a certificate of merit. However, a certificate alone is insufficient to demonstrate merit for the purposes of § 10(6) (Peralta v State of New York, Ct Cl, September 6, 2005, Motion No. M-70200, Schweitzer, J., UID No. 2005-036-100)[1], and this Court finds that the language contained in the Affirmation of claimants’ attorney is similarly insufficient, in and of itself, to establish the appearance of merit.

Claimants, however, have also submitted medical records and progress notes of Dr. Lutz (Exhibits A-C to Items 1, 2). In certain limited cases, medical records have been found to be sufficient to establish the appearance of malpractice, even without a supporting medical affidavit (Caracci v State of New York, 178 AD2d 876; DePaolo v State of New York, 99 AD2d 762). In the instant case, the Court has reviewed the submitted medical records, and based on this review, finds that claimants have sufficiently established the alleged acts of malpractice set forth in their proposed claim to satisfy the minimal requirements of Santana.

It appears to the Court that claimants may have another available remedy in State Supreme Court, presumably against the physician or physicians who allegedly committed the medical malpractice.

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.

Based upon the foregoing, and after weighing and considering all of the factors set forth under Court of Claims Act § 10(6), it is the opinion of this Court that claimants should be allowed to serve and file their proposed claim.

Therefore it is

ORDERED, that Motion No. M-76296 is hereby GRANTED; and claimants are directed to serve and file their proposed claim, properly verified, within 45 days from the date of filing of this decision and order in the Clerk’s office, with such service and filing to be in accordance with the Court of Claims Act, with particular reference to Sections 10, 11 and 11-a, and the Uniform Rules for the Court of Claims.

June 2, 2009
Syracuse, New York

Judge of the Court of Claims

[1]. Unpublished decisions and selected orders of the Court of Claims are available via the Internet at