New York State Court of Claims

New York State Court of Claims
FORNAL v. THE STATE OF NEW YORK, # 2010-009-024, Claim No. NONE, Motion No. M-78212


Claimant's application seeking permission to serve and file a late claim in this medical malpractice claim was granted.

Case information

UID: 2010-009-024
Claimant(s): MARSHA K. FORNAL
Claimant short name: FORNAL
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): NONE
Motion number(s): M-78212
Cross-motion number(s):
BY: Jean Marie Westlake, Esq.,
Of Counsel.
Defendant's attorney: HON. ANDREW M. CUOMO
Attorney General
BY: Senta B. Siuda, Esq.,
Assistant Attorney General
Of Counsel.
Third-party defendant's attorney:
Signature date: September 14, 2010
City: Syracuse
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant has brought this motion seeking permission to serve and file a late claim.

The following papers were considered by the Court in connection with this motion:

Notice of Motion, Affidavit of Jean Marie Westlake, Esq., with Exhibits (including Proposed Claim at Exhibit C) 1,2

Affirmation in Opposition 3

In her proposed claim, claimant seeks damages against the State based upon allegations of negligence and medical malpractice occurring during her stay at University Hospital Upstate Medical University ("Upstate") from May 11, 2008 through July 7, 2008. Claimant alleges that she was admitted to Upstate on May 11, 2008 following a serious automobile accident that left her with multiple serious injuries, including lower extremity paralysis. It is alleged that due to this paralysis, claimant was required to be physically moved by medical staff on a daily basis in order to prevent a breakdown of her skin (bedsores). Claimant alleges that she was not properly and regularly moved, as required, and that she developed a Stage IV Sacral Pressure Sore (bedsore) with resulting damages.

Pursuant to 10(6) of the Court of Claims Act, a late claim application may be brought "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." Since this proposed claim asserts a cause of action sounding in negligence and medical malpractice, the claim must be asserted within three years (CPLR 214) for any cause of action sounding in negligence, and within two years and six months from accrual (CPLR 214-a) for any cause of action asserting medical malpractice. Since this claim allegedly accrued between May 11, 2008 and July 7, 2008, it appears that the within application is timely, whether the claim is based upon negligence or medical malpractice.

In order to determine an application for permission to serve and file a late claim, the Court must consider, among other relevant factors, the six factors set forth in 10(6) of the Court of Claims Act. The factors set forth 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 file and the failure to serve upon the Attorney General a timely claim or notice of intention to file a claim; 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 (Matter of Gavigan v State of New York, 176 AD2d 1117).

The presence or absence of any one particular factor is not necessarily dispositive of any application (Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979), and none of the factors can require denial as a matter of law.

As for excuse, claimant(1) contends that she was unable to timely serve and file a claim as she had been discharged from Upstate to an acute care facility in August 2008 for further treatment of her injuries suffered in the automobile accident, and was not discharged from that facility to home care until 2009, at which time she was then able to make a determination to retain an attorney regarding the damages caused by the Stage IV Sacral Pressure Sore.

In certain situations, a claimant's medical incapacity throughout the statutorily permissible period to serve and file a claim can constitute a reasonable excuse for failing to timely serve and file (Bloom v State of New York, 6 Misc 2d 553, affd 5 AD2d 930). In order to establish medical incapacity as a reasonable excuse, however, a physician's affidavit, or some other form of acceptable proof, must be submitted to establish that the claimant was unable to timely institute the claim (Cabral v State of New York, 149 AD2d 453). In the instant application, no such affidavit or proof has been presented, and the Court must therefore conclude that claimant has failed to provide a reasonable excuse for failing to timely serve and file her claim.

The intertwined factors of notice, opportunity to investigate, and substantial prejudice will be considered together. Claimant contends that the State had notice of the essential facts constituting this claim since the alleged negligence and/or malpractice occurred at Upstate, and all aspects of her medical care were recorded and maintained in hospital records. The mere existence of medical records, however, does not satisfy a claimant's obligation to place the State on notice of the underlying facts of a proposed claim (Conroy v State of New York, 192 Misc 2d 71).

In this particular matter, however, claimant also registered a formal complaint with the New York State Department of Health, subsequent to her discharge(2) , regarding the negligent care and treatment she received at Upstate. In March 2010, the Department of Health issued a letter (see Exhibit B to Items 1,2) finding Upstate to be in violation of the State Hospital Code, resulting in a "Statement of Deficiencies". Based on this information, the Court finds that in order to properly respond to the formal complaint of claimant, the State did have notice of the essential facts constituting this claim, and did have an opportunity to conduct an investigation into these circumstances, even though such notice and opportunity to investigate first arose beyond the 90 day time period in which claimant could have timely served and filed her claim (Court of Claims Act  10[3]).

Accordingly, based upon the investigation conducted by the Department of Health, as well as the available medical records which document the care and treatment received by claimant, the Court finds that the State does have a sufficient basis on which to defend this claim, and that it will not be substantially prejudiced should it have to do so.

The next factor, often deemed the most critical, is whether the proposed claim has the appearance of merit. If claimant cannot establish a meritorious claim, it would be an exercise in futility to grant a late claim application (Savino v State of New York, 199 AD2d 254; Prusack v State of New York, 117 AD2d 729). In order to establish a meritorious cause of action, claimant has the burden to show that the proposed claim is not patently groundless, frivolous, or legally defective, and that there is reasonable cause to believe that a valid claim exists (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1).

In medical malpractice claims, a finding of merit usually requires a supporting affidavit from a physician or other medical expert (Schreck v State of New York, 81 AD2d 882), although such an affidavit is not necessary if the appearance of medical malpractice can be determined based upon other submissions (DePaolo v State of New York, 99 AD2d 762).

In this matter, claimant's attorney has affirmed that an expert was consulted who determined that there was merit to claimant's case and that the requirements of CPLR 3012-a (Certificate of Merit) could be met. However, a Certificate of Merit alone is insufficient to demonstrate merit for the purposes of 10(6) (Peralta v State of New York, Ct Cl, September 6, 2005, Motion No. M-70200, Schweitzer, J., UID No. 2005-036-100)(3) , and the unsupported statement from claimant's attorney is similarly insufficient, in and of itself, to establish the appearance of merit.

In this particular matter, however, and as previously discussed, claimant had registered a formal complaint with the Department of Health, and after an investigation, the Department found Upstate in violation of the State Hospital Code, and issued a "Statement of Deficiencies". Based primarily upon the results of this investigation, the Court finds that claimant has sufficiently established an appearance of merit sufficient to satisfy the minimal requirements of Santana.

Although not addressed in the instant application, it does not appear to the Court that claimant has any other available remedy.

Based upon the foregoing, and after weighing and considering all of the factors set forth under Court of Claims Act 10(6), it is the opinion of this Court that claimant should be allowed to serve and file her proposed claim.

Therefore it is

ORDERED, that Motion No. M-78212 is hereby GRANTED; and claimant is directed to serve and file her proposed claim, properly verified, within 45 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, with particular reference to Sections 10, 11 and 11-a, and the Uniform Rules for the Court of Claims.

September 14, 2010

Syracuse, New York


Judge of the Court of Claims

1. There was no supporting affidavit of the claimant submitted with this application. Relevant information has therefore been taken from the supporting affidavit of Jean Marie Westlake, claimant's attorney.

2. The Court notes that according to the submitted papers, the complaint to the Department of Health was made in July, 2009, well beyond the statutory 90 day period within which claimant was required to serve and file her claim.

3. Unpublished decisions and selected orders of the Court of Claims are available via the Internet at