New York State Court of Claims

New York State Court of Claims

CALLAHAN v. The State of New York, #2009-033-330, Claim No. None, Motion No. M-75745


Synopsis



Case Information

UID:
2009-033-330
Claimant(s):
LAWRENCE CALLAHAN, DECEASED, BY DENISE CALLAHAN, PROPOSED ADMINISTRATRIX, AND DENISE CALLAHAN, INDIVIDUALLY
1 1.The Court sua sponte amends the caption to reflect The State of New York as the only properly named Defendant.
Claimant short name:
CALLAHAN
Footnote (claimant name) :

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

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-75745
Cross-motion number(s):

Judge:
James J. Lack
Claimant’s attorney:
Joseph A. Hanshe, PLLCBy: Joseph A. Hanshe, Esq.
Defendant’s attorney:
Andrew M. Cuomo, New York State Attorney GeneralBy: Mary Y.J. Kim, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 24, 2009
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

This is a motion for a late claim for damages due to the wrongful death of Lawrence Callahan (hereinafter “decedent”) by Denise Callahan as the Proposed Administratrix of decedent’s estate and Denise Callahan, individually, as the result of the alleged medical malpractice by defendant on June 25, 2008. The alleged acts of malpractice were committed by employees at Stony Brook University Hospital, Stony Brook, New York (hereinafter “Hospital”).

Movant asks this Court to grant permission to file a late claim[2].


In order to determine whether to grant a timely made application for permission to file a late claim, the Court must consider, among any other relevant factors, the six statutory factors set forth in Court of Claims Act §10(6):
(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 failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State;
(5) whether movant has another available remedy; and
(6) whether the claim appears to be meritorious.


The Court in the exercise of its discretion balances these factors, and, as a general rule, the presence or absence of any one factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees’ Retirement System Policemen’s and Firemen’s Retirement System, 55 NY2d 979).

The Court will address the question of merit first, as this will be controlling in this matter. While the presence or absence of any one of the six factors is not dispositive (see Bay Terrace Coop. Section IV v New York State Employees’ Retirement System Policemen’s and Firemen’s Retirement System, supra), the most critical factor always is the apparent merit of the proposed claim. The movant need only establish that the proposed claim is not patently groundless, frivolous or legally defective and 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). If a movant cannot meet this low threshold and the claim is patently without merit it would be meaningless and futile for the Court to grant the application even if all the other factors in Court of Claims Act §10(6) weighed in favor of the movant’s request.

Since movant is seeking permission to file a late claim in a medical malpractice action, she must include a physician’s affidavit in support of her application. This affidavit is necessary to establish the allegations of deviations from accepted standards (see Jolley v State of New York, 106 Misc 2d 550; Favicchio v State of New York, 144 Misc 2d 212). A physician’s affidavit has not been included in the moving papers which is a well established requirement (see Colson v State of New York,115 Misc 2d 402; Schreck v State of New York, 81 AD2d 882; Matter of Edwards v State of New York, 119 Misc 2d 355, 357). Rather, movant has included a certificate of merit pursuant to CPLR 3012-a. The certificate of merit does not establish allegations of deviations from accepted standards, but gives a vague statement that departures from accepted standards exist in the records. It is incumbent upon movant to meet a greater burden of detailing her allegations to establish the merit of a late claim as opposed to the simple review required by a certificate of merit.

Movant is captioned as the “Proposed Administratrix” of decedent’s estate. According to her papers, the surrogate’s court has not appointed movant yet. The Court concludes movant’s motion is premature and must be denied. Movant is filing as the “Proposed Administratrix” and thus is without standing before this Court. Court of Claims Act §10(2) allows a claimant to file a claim for wrongful death within 90 days of the appointment of an administratrix. In the event movant wishes to make a claim for conscious pain and suffering, she must wait until she has standing before this Court.

Based upon the foregoing, movant’s motion for permission to file a late claim is denied.


March 24, 2009
Hauppauge, New York

HON. JAMES J. LACK
Judge of the Court of Claims




[2].The following papers have been read and considered on movant’s motion: Notice of Motion dated October 22, 2008 and filed October 27, 2008; Affidavit of Denise Callahan sworn to October 21, 2008 and filed October 27, 2008; Attorney Affirmation of Joseph A. Hanshe, Esq. with annexed Exhibits A-E dated October 22, 2008 and filed October 27, 2008; Memorandum of Law of Joseph A. Hanshe, Esq. dated October 22, 2008 and filed October 27, 2008; Affirmation in Opposition of Mary Y.J. Kim, Esq. dated November 18, 2008 and filed November 19, 2008; Reply Affirmation of Joseph A. Hanshe, Esq. with annexed Exhibits A-C dated December 4, 2008 and filed December 8, 2008.