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
, 55 NY2d 979, 981 (1982). A copy of the proposed
, must accompany the motion, allowing the
Court to ascertain the nature and location of the claim, as well as the date of
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
; Schreck v State of New York
AD2d 882 (2d Dept 1981)]
; 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
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
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
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.
. . .”