New York State Court of Claims

New York State Court of Claims

Algustowski v. STATE OF NEW YORK, #2009-018-050, Claim No. NONE, Motion No. M-76859


The Court grants permission to file a late claim pursuant to Court of Claims Act § 10 (6).

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:
By: Robert F. Julian, Esquire Stephanie A. Palmer, Esquire
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:
October 21, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Movant brings this second application[2] for 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 [6]). The motion has been timely brought (see Court of Claims Act § 10 [2] and [3], 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.[3] 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 husband’s death.

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 submissions,[4] 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 Court rules.

October 21, 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 Robert F. Julian, Esquire, sworn to June 22, 2009, in support, with exhibits attached thereto.

3. Affidavit of Amanda Algustowski, Movant, sworn to June 22, 2009, in support, with exhibits attached thereto.

4. Affidavit of Waddie Kalil, sworn to June 22, 2009, in support.

5. Affidavit of Lester P. Eidelhoch, M.D., sworn to June 22, 2009, in support with exhibit attached.

6. Affirmation of Maureen A. MacPherson, Esquire, Assistant Attorney General, in opposition, with exhibit attached thereto.

[2]. See Algustowski v State of New York, Fitzpatrick, J., Ct Cl, dated March 23, 2009, Cl. No. None, Motion No. M-75966, UID # 2009-018-018.
[3].Amanda Algustowski affidavit, paragraph 9.
[4]. Last page of Exhibit A, attached to Amanda Algustowski’s affidavit, letter dated December 13, 2007, from Edward D. Sivak, M.D., to Movant.