New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK, #2009-030-551, , Motion No. M-76925


Late claim motion granted. Proposed claim alleges Veterans Home failed to provide adequate medical care upon readmission, worsening a healed ulcer. Affirmation by medical expert accompanied motion, and is specific and particular, and sets forth the underlying bases for opinion, including the attached hospital records. Although no excuse, lapse of time not prejudicial, and the appearance of merit satisfied

Case Information

In the Matter of LEON JOHNSON, as the Administrator of the Estate of ALFONSO JOHNSON, Deceased
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:
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
September 8, 2009
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on claimant’s motion for late claim relief:

1,2 Notice of Motion to File Late Claim; Attorney’s Affirmation in Support of Motion to File

Late Claim by Kevin McDonald, attorney for claimant and attached exhibits

  1. Affirmation in Opposition by Albert E. Masry, Deputy Section Chief, Office of the Attorney General, attorneys for defendant[1]
In the proposed claim Leon Johnson, administrator of the Estate of Alfonso Johnson, deceased, alleges that defendant’s agents failed to provide decedent adequate medical care when he was hospitalized at the New York State Veterans Home in St. Albans [Veterans Home] from on or about December 14, 2006 through January 3, 2007. [See Attorney’s Affirmation in Support of Motion to File Late Claim, Exhibit 2]. More specifically, it is alleged that the State’s failure to provide proper care upon his readmission to the Veterans Home from a week long stay at Mary Immaculate Hospital [MIH] resulted in the aggravation of what had been a healed sacral ulcer, into a larger, more painful, sacral decubitus pressure ulcer, causing Alfonso Johnson pain and suffering until his eventual death on March 31, 2007.

Thereafter, and largely because the claimant only had records from MIH, claimant hired his present attorneys to investigate and prosecute a claim of medical malpractice against MIH. Letters of Administration were issued to Leon Johnson, the decedent’s son, on December 19, 2008. [Attorney’s Affirmation in Support of Motion to File Late Claim, Exhibit 10]. After further investigation, and after obtaining and reviewing medical records from the Veterans Home first requested in January 2009, paid for in March 2009 and finally received in June 2009, it was discovered that the inadequate care and consequent painful growth of the ulcer occurred at the Veterans Home, not MIH. [Attorney’s Affirmation in Support of Motion to File Late Claim, Exhibits 3 - 7].

Elliot Newhouse, M.D. affirms, among other things, that based upon his review of the medical records from MIH and the Veterans Home there is merit to the claim that decedent was at high risk for the aggravation and development of the sacral decubitus ulcer, that the care he received at Veterans Home departed from good and accepted practice, and that such departures, within a reasonable degree of medical certainty, directly led to “the dramatic worsening of Mr. Johnson’s condition from a 1 x 1cm healed ulceration to a 5 x 7 cm Stage II- Stage III sacral decubitus.” [See Attorney’s Affirmation in Support of Motion to File Late Claim, Exhibit 1]. Medical records from the Veterans Home and MIH are attached. [Ibid. Exhibits 8 and 9].

In order to determine an application for permission to serve and file a late claim, the Court must consider, “among other factors,” the six factors set forth in §10(6) of the Court of Claims Act. The factors stated 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 serve upon the Attorney General a claim or notice of intention to file a claim, and the failure to timely file the claim with the Court of Claims; 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. The presence or absence of any particular factor is not dispositive Bay Terrace Coop. Section IV v New York State Employees’ Retirement Sys. Policemen’s & Firemen’s Retirement Sys., 55 NY2d 979, 981 (1982). A copy of the proposed claim[2], must accompany the motion, allowing the Court to ascertain the nature and location of the claim, as well as the date of accrual. See Court of Claims Act §11-b.

Additionally, the motion must be timely brought in order to allow that a late claim be filed “. . . 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 . . . ” Court of Claims Act § 10(6). A motion is “made when a notice of motion . . . is served.” Civil Practice Law and Rules §2211; see also Jenkins v State of New York, 119 Misc 2d 144, 145 (Ct Cl 1983). Here, the applicable statute of limitations is two and one-half (2 ½ ) years [see Civil Practice Law and Rules §214-a] from the assumed accrual date of January 3, 2007. According to the affidavit of service, the motion was personally served on July 2, 2009, thus the motion is timely.

Claimant does not present any excuse for failing to timely serve and file a claim beyond the asserted lack of clarity as to where decedent was when the ulcer grew, caused by the delay in obtaining the medical records from the Veterans Home. Reasons for delays appear to have been shared somewhat, in that there was some laxity in following up on the requests for the documents, in addition to the late responses. The absence of an excuse does not conclude the matter, however. “Even if the excuse for failing to file a timely claim is ‘not compelling,’ the denial of a motion to file a late claim may . . . constitute an improvident exercise of discretion where the delay is minimal, the State suffered no prejudice, and there may be issues of fact as to the merits of the claim . . . (citations omitted).” Jomarron v State of New York, 23 AD3d 527 (2d Dept 2005).

The closely related factors of notice, opportunity to investigate and prejudice to the State, considered together, weigh toward granting claimant’s motion. As noted by counsel for claimant - at least with respect to actions premised on medical malpractice against municipalities and their ilk wherein the injured party is either deceased or incapacitated from giving testimony - the “knowledge of the claim possessed by the public corporation is at least coextensive with, if not superior to, that of the representative of the injured party and is contemporaneous with the alleged acts of malpractice. Where the propriety of treatment rendered will be determined by an analysis of the medical record, there is little advantage to be gained from the service of a timely notice of claim and, therefore, little prejudice to be sustained by untimely service” (citation omitted). Matter of Banegas-Nobles v New York City Health & Hosps. Corp., 184 AD2d 379, 380 (1st Dept 1992). The lapse of time is not so great that the State’s ability to further investigate is impeded to its prejudice. With regard to alternative relief, the claimant notes that while a State court action against individual physicians or staff might be theoretically available, there is no indication that those who treated decedent were privately retained or otherwise not State employees.

The appearance of merit is viewed as the most important factor to consider in an application to serve and file a late claim. A claim appears to be “meritorious” within the meaning of the statute if it is not patently groundless, frivolous or legally defective and a consideration of the entire record indicates that there is reasonable cause to believe that a valid cause of action exists. Matter of Santana v New York State Thruway Auth, 92 Misc 2d 1 (Ct Cl 1977). Claimant need not establish a prima facie case at this point, but rather the appearance of merit.

When the proposed claim asserts a cause of action requiring an expert opinion in order to be established - such as a medical malpractice cause of action - an affidavit of merit from a qualified expert should be included with the application [ Matter of Perez v State of New York, 293 AD2d 918 (3d Dept 2002)[3]; Schreck v State of New York, 81 AD2d 882 (2d Dept 1981)][4]; as well as the underlying basis for such opinion i.e.: the medical records reviewed [see Favicchio v State of New York, 144 Misc 2d 212, 214 (Ct Cl 1989)][5].

In a medical malpractice claim, claimant must establish that the medical caregiver either did not possess or did not use reasonable care or best judgment in applying the knowledge and skill ordinarily possessed by practitioners in the field and must prove (1) a deviation or departure from accepted practice and (2) evidence that such deviation was the proximate cause of the injury or other damage.

If the allegations in the claim are accepted as true for the purposes of this motion, claimant has made the requisite showing of merit in order to permit late service and filing of the claim. The physician’s affirmation of merit included is specific and particular, and indicates the underlying bases for his opinion, including decedent’s hospital records, which are appropriately attached to the motion.

Accordingly, after careful consideration of all the pertinent factors, claimant’s motion for permission to serve and file a late claim is hereby granted. Claimant is directed to serve such claim[6] upon the Attorney General, and to file it with the Chief Clerk of the Court of Claims, within forty (40) 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, and the Uniform Rules for the Court of Claims.

September 8, 2009
White Plains, New York

Judge of the Court of Claims

[1]. Without waiving its right as to the verified answer it would make to the proposed claim, the State of New York takes no position with regard to the motion for late claim relief.

Court of Claims Act § 10(6) states in pertinent part: “. . . The claim proposed to be filed, containing all of the information set forth in section eleven of this act, shall accompany such application
. . .”
[3]. In a proposed claim alleging that the misdiagnosis and inadequate treatment of a cancerous ulceration on his leg resulted in deformity and permanent injury, medical records alone insufficient in support of late claim motion. Expert medical evidence was required to show that the alleged inadequate treatment of ulcer was inadequate in the first instance, and that the ulcer was cancerous when examined, and how such failures are linked to the damages suffered.
[4]. Court of Claims abused discretion in allowing late claim to be filed in claim alleging medical malpractice where no affidavit by medical expert causally linking birth of brain damaged child to asserted malpractice submitted.
[5]. Opinion by medical expert without underlying basis for it - in this case the medical records the physician indicated he had reviewed - insufficient to establish appearance of merit in late claim motion.
[6]. There are only claimants, not plaintiffs, in the Court of Claims. The claim served and filed should so indicate.