New York State Court of Claims

New York State Court of Claims

ALGUSTOWSKI v. STATE OF NEW YORK, #2009-018-018, Claim No. None, Motion No. M-75966


Claimant’s motion to file a late claim is denied. The document attached labeled an affidavit from a physician is unsworn and not an affidavit. The document submitted is neither notarized nor includes any reference to its truth or awareness that it is made under the penalties of perjury.

Case Information

1 1.The Court has amended the caption sua sponte to reflect the State of New York as the only proper Defendant.
Claimant short name:
Footnote (claimant name) :

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

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
Attorney General of the State of New York
By: Maureen A. MacPherson, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 23, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Movant brings this application for permission to file a late claim[2] pursuant to Court of

Claims Act § 10(6). The Defendant opposes the motion.

Movant has attached a proposed claim to her motion which seeks damages for the alleged medical malpractice and nursing negligence of the Defendant. Movant’s Decedent was admitted to State University of New York Upstate Medical University, University Hospital (hereinafter University Hospital) on November 26, 2007, for surgery on his right foot. The Decedent had several underlying diagnoses including diabetes, a below-knee amputation of his left extremity, and obstructive sleep apnea. Decedent required certain sleep apnea equipment, a CPAP device and oxygen cannula, while sleeping of which the hospital was aware. The proposed claim asserts that Decedent was permitted to go to sleep without these sleep apnea devices resulting in his injury and ultimate death on December 8, 2007. Movant was issued Letters Testamentary on November 18, 2008. The proposed claim seeks damages for Decedent’s pain and suffering, wrongful death, and Movant’s loss of consortium.

A proposed claimant who fails to timely file and serve a claim or serve a notice of intention may be permitted, upon application and in the discretion of the Court, to file a claim which complies with § 11 of the Court of Claims Act, 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 CPLR (Court of Claims Act § 10[6]). Although the motion is timely for the personal injury and loss of consortium claims, it was actually premature for the wrongful death claim at the time the motion was filed (see Court of Claims Act § 10(2),(3), CPLR 214-a, EPTL 5-4.1). A claim for wrongful death must be brought within 90 days of the date an administrator of the estate has been appointed. However, since any wrongful death claim would now be untimely, the Court will consider the motion for this cause of action as well.

Turning to the substantive analysis, to determine whether an application for permission to file a late claim should be granted, consideration must be given to the six factors listed in Court of Claims Act § 10(6) and any other relevant factors. The presence or absence of any one factor is not determinative (Bay Terrace Cooperative Section IV, Inc., v New York State Employees’ Retirement System, Policemen’s and Firemen’s Retirement System, 55 NY2d 979; Ledet v State of New York, 207 AD2d 965). Instead, it is a balancing of all of the factors by the Court which may warrant the granting of the application to file and serve a late claim.

Movant asserts as an excuse for the failure to timely serve a notice of intention or to file and serve a claim in accordance with Court of Claims Act § 10 that due to “the severity of the serious permanent and personal injuries sustained by me, the Claimant, and the ultimate demise of my husband, I only recently have been able to attend to the possibility of pursuing a possible action.”[3] Apparently, there was also some difficulty in getting Letters Testamentary because of some uncooperative family members. These, however, are not adequate excuses for failing to timely file and serve a claim or serve a notice of intention. Movant has not specified what permanent and personal injuries she suffered which prevented her from filing and serving a claim (see Klinger v State of New York, 213 AD2d 378 [where claimant’s assertion that she suffered a cerebral concussion and cervical strain for an unspecified period of time was not a sufficient excuse]; Cabral v State of New York, 149 AD2d 453 [claimant’s hospitalization for a period of time insufficient]). Nor is the difficulty in obtaining Letters Testamentary a valid excuse, as Movant is Decedent’s next of kin and could have served a notice of intention, which is not a pleading, even before she obtained the legal status to bring the action (see Smith v State of New York, 53 AD2d 756, 757, affd 41 NY2d 1063; Matter of Johnson v State of New York, 49 AD2d 136; DeFilippis v State of New York, 157 AD2d 826).

Turning to whether the State had notice, an opportunity to investigate the facts underlying the proposed claim, or whether the State would suffer prejudice if the application was granted, these factors, being interrelated, will be considered together. Movant asserts that the State had actual notice of the underlying facts relating to the events leading to Decedent’s death. Defendant argues that the State had no notice of any alleged malpractice on the part of its employees or the facts underlying the proposed claim and no opportunity to investigate the facts. Defendant further alleges that since a year has transpired since Decedent died, it will be prejudiced by the granting of this application due to memories fading. Although Defendant may not have had any notice of the allegations of its employees’ negligence, there should be ample medical records to identify witnesses and assist with fading memories. This should permit Defendant to investigate the underlying circumstances of the proposed claim and minimize any prejudice.

The next factor, whether the claim appears to be meritorious, is referred to as the most essential factor. Unlike a party who has timely filed a claim, one seeking permission to file a late claim has the heavier burden of demonstrating that the proposed claim appears to be meritorious (see Nyberg v State of New York, 154 Misc 2d 199). Generally, a proposed claim meets this standard if it is not patently groundless, frivolous, or legally defective, and upon consideration of the entire record there is cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 11). Movant asserts that the basis for the claim is Defendant’s alleged medical malpractice and negligence. Whether a claim sounds in medical malpractice or simple negligence is dependent on the facts, and whether the alleged wrongdoing involved providing medical care and treatment; even when the care provided was not by a physician but a nurse (Scott v Uljanov, 74 NY2d 673, 674-675; Bleiler v Bodnar, 65 NY2d 65, 70; Smith v Pasquarella, 201 AD2d 782, 783).

Based upon the information before the Court, it seems that this action would fall within the realm of medical malpractice, as the required breathing equipment was treatment for a medical condition.

A late claim application seeking permission to bring a medical malpractice cause of action typically requires an expert affidavit setting forth the standard of care and factually how Defendant’s alleged conduct breached that standard (see Schreck v State of New York, 81 AD2d 882; Colson v State of New York, 115 Misc 2d 402; Favicchio v State of New York, 144 Misc 2d 212). Although in some instances, medical records alone will establish the potential meritoriousness of a proposed claim, here Decedent’s medical records do not permit, without medical expertise, reasonable cause to believe there was a breach of the standard of care. The medical records were also not provided with Movant’s application but by reply affidavit.

Movant’s submissions fail to meet her burden. The document she has attached labeled an affidavit from physician, Dr. Lester P. Eidelhoch is unsworn and is not an affidavit (Magro v He Yin Huang, 8 AD3d 245; cf Engles v Claude, 39 AD3d 357; Collins v AA Trucking Renting Corp., 209 AD2d 363; Pennsylvania Manufacturers’ Assoc. Ins. Co. v Liberty Mutual Ins. Co., 11 Misc 3d 1086[A]). Although Dr. Eidelhoch is a licensed physician, and is entitled pursuant to CPLR 2106 to submit an affirmation, it must include a statement that it is true under penalties of perjury (see John H. Dair Bldg., Constr. Co. v Mayer, 31 AD2d 835; Jones v Schmitt, 7 Misc 3d 47; see also Pennsylvania Manufacturers’ Assoc. Ins. Co., 11 Misc 3d at 1086[A]). Here the document submitted is neither notarized nor includes any reference to its truth or Dr. Eidelhoch’s awareness that it is made under penalties of perjury.

The failure to provide an appropriate affidavit or affirmation precludes the Court finding this factor weighs in favor of Movant’s application.

The final factor to be considered is whether Movant has any other available remedy. As Defendant points out, Movant may have a medical malpractice action against the treating physicians directly, although it unclear how viable that action would be given the information before the Court at this time.

Upon balancing all of the factors in the Court of Claims Act § 10(6), this Court DENIES the motion without prejudice to reapply for the same relief upon sufficient papers.

March 23, 2009
Syracuse, New York

Judge of the Court of Claims

The Court has considered the following documents in deciding this motion:

1. Notice of Motion.

2. Affidavit of Amanda Algustowski, in support, sworn to December 4, 2008, with exhibits attached thereto.

3. Affidavit of Robert F. Julian, Esquire, in support, sworn to December 4, 2008, and additional affidavits with exhibit attached thereto.

4. Affirmation of Maureen A. MacPherson, Esquire, Assistant Attorney General, in opposition.

5. Reply Affidavit of Stephanie A. Palmer, Esquire, sworn to February 17, 2009, with exhibits attached thereto.

6. Letter from Maureen A. MacPherson, Esquire, Assistant Attorney General, dated February 18, 2009, directed to the Judge.

[2].The Notice of Motion actually reflects that permission is sought to file a late notice of intention; however, no such relief is authorized by the Court of Claims Act. In the supporting papers, attached to the notice of motion and served upon the Defendant, it is made clear that Movant seeks relief under Court of Claims Act § 10(6), and the Court will consider this a late claim application.
[3]. Amanda Algustowski affidavit, paragraph 6.