Claimants' application seeking leave to serve and file a late claim was granted.
|Claimant(s):||WILLIAM M. FULLER and SYLVIA FULLER|
|Claimant short name:||FULLER|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||NICHOLAS V. MIDEY JR.|
|Claimant's attorney:||CRAIG BILLINSON & ASSOCIATES
BY: Peter M. Hartnett, Esq.,
|Defendant's attorney:||HON. ANDREW M. CUOMO
BY: Senta B. Siuda, Esq.,
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 10, 2010|
|See also (multicaptioned case)|
Claimants have 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 Peter M. Hartnett, Esq.; Proposed "Notice of Claim" 1-3
Affirmation in Opposition of Senta B. Siuda, Esq., Assistant Attorney General 4
Reply Memorandum of Law 5
In their proposed claim, claimants seek damages against the State for injuries suffered by claimant William Fuller(1) which allegedly occurred on October 6, 2009 during his hospitalization at University Hospital Upstate Medical University ("Upstate"). Specifically, claimants allege that claimant was injured as a result of the negligence of certain employees of Upstate, who allegedly failed to take reasonable care in moving him in his bed.
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, the claim must be asserted within three years (CPLR § 214). Since this claim allegedly accrued on October 6, 2009, the within application clearly is timely. 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, claimants(2) take the position that they did not timely serve and file a claim because they were unaware of the time limits or notice requirements under the Court of Claims Act. As set forth in Mr. Hartnett's Affidavit, claimants had also consulted with another attorney who apparently investigated a potential claim against the individual treating physicians, but not one against Upstate. However, neither unfamiliarity with the law (Sevillia v State of New York, 91 AD2d 792) or a mistake as to the proper entity to sue (Erca v State of New York, 51 AD2d 611, affd 42 NY2d 854) constitutes a reasonable excuse for failing to timely serve and file a claim. Accordingly, the Court concludes that claimants have failed to provide a reasonable excuse for failing to timely serve and file their claim.
The intertwined factors of notice, opportunity to investigate, and substantial prejudice will be considered together. In this matter, claimants contend that the State had notice of the essential facts constituting this claim since the alleged negligence occurred at Upstate, that such negligence resulted in an extended stay at that facility, and that claimant was required to undergo several additional surgeries as a direct result of such negligence. 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, the incident apparently was investigated by a representative of Upstate's Risk Management Office, leading this Court to find that the State did have notice of the essential facts constituting this claim, as well as an opportunity to conduct an investigation, shortly after its occurrence. Accordingly, 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).
However, although this incident occurred at Upstate during the course of medical treatment being provided to claimant, it does not appear that the proposed claim is based upon allegations of medical malpractice, but rather is based upon allegations of negligence. Specifically, claimants allege that Upstate employees failed to use ordinary and reasonable care when they moved claimant in his hospital bed. As such, the claim is not based upon issues surrounding the diagnosis or treatment of claimant, but rather is based upon acts of ordinary negligence. As a result, the fact that claimants did not submit a medical expert's affidavit of merit with this application, as is generally required under § 10 (6) for claims sounding in medical malpractice, is not fatal to their application (Coursen v New York Hosp.-Cornell Med. Ctr., 114 AD2d 254).
Furthermore, based upon the allegations set forth in the claim, the Court finds that claimants have sufficiently established an appearance of merit sufficient to satisfy the minimal requirements of Santana.
Based upon the allegations set forth herein, it does not appear to the Court that claimants have any other available remedy.
Accordingly, 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 claimants should be allowed to serve and file their proposed claim.
Therefore it is
ORDERED, that Motion No. M-78450 is hereby GRANTED; and claimants are directed to serve and file their 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.
December 10, 2010
Syracuse, New York
NICHOLAS V. MIDEY JR.
Judge of the Court of Claims
1. The claim of Sylvia Fuller is derivative in nature, and therefore any references to claimant herein are to claimant William Fuller, unless otherwise indicated.
2. There was no supporting affidavit from either William M. Fuller or Sylvia Fuller submitted with this application. Relevant information has therefore been taken from the Affidavit of Peter M. Hartnett, Esq., claimants' attorney.