Movant brings this second application
permission to file a late claim pursuant to
Court of Claims Act § 10 (6). The Defendant opposes the motion.
Movant has submitted a proposed claim seeking damages for Defendant’s
alleged medical malpractice and nursing negligence which she asserts resulted in
Decedent’s death. Decedent was admitted to Upstate 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 lower 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. It is alleged 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 ). The motion has been timely brought (see
Court of Claims Act § 10  and , CPLR 214-a, EPTL § 5-4.1 and
Public Health Law § 2805-d; Schrank v Lederman, 52 AD3d 494).
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 indicates 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 she suffered serious anxiety and depression as well as the loss
of her husband.
She also notes that she was
unaware of the time frame for serving a notice of intention or filing and
serving a claim. Movant consulted with her attorneys on this matter for the
first time on June 30, 2008, more than six months after her husband’s
death. Her first late claim application was brought one year after her
It is clear from the records Movant submits that she has suffered from
depression for much of her life. Although it is not hard to understand that
Movant’s condition could have been exacerbated by the unexpected loss of
her husband, the documentation provided does not support her inability to serve
even a notice of intention within the 90 days following her husband’s
death (see Klingler v State of New York, 213 AD2d 378; compare Bloom
v State of New York, 5 AD2d 930; Plate v State of New York, 92 Misc
2d 1033). Even after consulting with her attorney an additional six months
transpired before the initial motion was served in this matter.
Moreover, Movant’s unfamiliarity with the filing requirements in the
Court of Claims has consistently been held to be not an acceptable excuse.
(Matter of Galvin v State of New York,176 AD2d 1185, lv denied 79
NY2d 753; Sevillia v State of New York, 91 AD2d 792; Potter v State of
New York, 5 AD2d 725).
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 leading to Decedent’s death as he was found unresponsive
and without his breathing apparatus. From Movant’s
she clearly inquired right after
Decedent’s death about his care, and the Deputy Director of Nursing, Nancy
Deavers, reviewed Decedent’s hospital course to address Movant’s
questions and concerns. It is not clear what Movant’s concerns were at
that time or whether Defendant was made aware of the facts underlying this
claim. However, Defendant did have notice of this potential claim a year after
Decedent died, and there are medical records to identify witnesses, review the
course of Decedent’s care, 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). The basis for the claim is Defendant’s alleged
medical malpractice and negligence. Movant has attached an affidavit from a
physician, Lester P. Eidelhoch, M.D., who is licensed to practice medicine in
New York State. He has been a staff surgeon at St. Lukes, St. Elizabeth, and
Faxton Hospitals in Utica. He also taught courses at Utica College and was the
Medical Director of Walsh Medical Center in Rome, New York until 1996. Dr.
Eidelhoch opines that Decedent’s death was caused by the negligence of the
medical staff, especially the nurses, at University Hospital in failing to make
sure that Decedent had his sleep apnea equipment that night; and if he refused
it, contemporaneous documentation should have been made, the attending physician
should have been advised, and an “against medical advice form”
should have been provided to Decedent for signature. The failure of the
nursing staff to have taken these actions were deviations from the standard of
care. Dr. Eidelhoch opines that this failure led to Decedent’s death.
Movant has met the minimal requirements on this motion, and the Court finds this
factor weighs in favor of Movant’s application.
The final factor to be considered is whether Movant has any other available
remedy. It seems, based upon the information presented that the claim is most
appropriate against the State; although, it is still possible that once the
facts are developed an independent medical malpractice action may exist against
the treating physicians.
Upon balancing all of the factors in the Court of Claims Act § 10 (6),
this Court GRANTS the motion. Movant is directed to file and serve the proposed
claim and pay the required fee or submit the appropriate application in
accordance with Court of Claims Act § 11-a within 30 days of the date this
Decision and Order is filed with the Clerk of this Court. Filing and service of
the claim should be in accordance with all applicable statutory requirements and