Late claim motion was denied as unnecessary with respect to infant claimant and denied with leave to renew with respect to mother's derivative claim.
|Claimant(s):||ALEXANDER PROPHETE, infant by his mother and natural guardian, ALEXANDRA CADET, and ALEXANDRA CADET, individually|
|Claimant short name:||PROPHETE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||Alan C. Marin|
|Claimant's attorney:||Burns & Harris, Esqs.
By: Jean M. Prabhu, Esq.
|Defendant's attorney:||Andrew M. Cuomo, Attorney General
By: Albert E. Masry, Esq., Deputy Section Chief
|Third-party defendant's attorney:|
|Signature date:||October 26, 2010|
|See also (multicaptioned case)|
Claimants Alexander Prophete, an infant, and Alexandra Cadet, his mother and natural guardian, move for permission to file a late claim pursuant to §10.6 of the Court of Claims Act (the "Act"). They also seek an order directing defendant to provide a complete copy of claimants' medical records including fetal monitoring strips. In the proposed claim, it is alleged that defendant committed medical malpractice in connection with the delivery of Alexander Prophete at Downstate Medical Center on January 13, 2010, resulting in injury to Alexander. The proposed claim also contains a derivative loss of services claim on behalf of Alexandra Cadet.
Claimants served a notice of intention on May 21, 2010. Citing the doctrine of continuous treatment, they state that while it is their "position that the [notice of intention was] timely, this motion is made out of caution to protect the infant claimant and his mother," i.e., in the event that the doctrine of continuous treatment is found inapplicable.
Alexander Prophete, who was born on January 13, 2010, is an infant and thus "under legal disability" for the purposes of §10.5 of the Act, which provides that he need not serve and file his claim until "two years after such disability is removed." This motion is thus not necessary with respect to Alexander.
As to Alexandra Cadet, however, §10.3 of the Act requires that a claim such as hers be served and filed within 90 days of accrual or, alternatively, that a notice of intention be served within such time period. If the continuous treatment doctrine does not apply here so that the date of accrual is January 13, 2010, then the notice of intention served on May 21, 2010 was untimely. It should also be noted that defendant argues that, with respect to Ms. Cadet's individual claim, the notice of intention is inadequate for the purposes of §11.b of the Act in that it fails to state the nature of the claim since it nowhere indicates that such is a derivative loss of services claim. If so, this would constitute a jurisdictional defect. See Kolnacki v State of New York, 8 NY3d 277, 281 (2007). In view of the foregoing, it is not inappropriate for the court to consider Ms. Cadet's late claim motion.
In order to determine the motion, six factors enumerated in the Act must be considered, i.e., whether: (1) defendant had notice of the essential facts constituting the claim; (2) defendant had an opportunity to investigate the circumstances underlying the claim; (3) defendant was substantially prejudiced; (4) claimant has any other available remedy; (5) the delay was excusable; and (6) the claim appears to be meritorious. "However, it would be futile to permit the filing of a legally deficient claim which would be subject to immediate dismissal, even if the other factors tend to favor the granting of the request . . ." Prusack v State of New York, 117 AD2d 729, 730 (2d Dept 1986).
There is authority that a physician's affirmation is a condition precedent to a finding of merit on a late claim motion. See, e.g., Schreck v State of New York, 81 AD2d 882 (2d Dept 1981); Favicchio v State of New York, 144 Misc 2d 212 (Ct Cl 1989); and Jolley v State of New York, 106 Misc 2d 550 (Ct Cl 1980). A number of appellate division cases have held that a medical affidavit is not necessary, but in such cases, claimants submitted medical records patently sufficient to show the appearance of medical malpractice. See Caracci v State of New York, 178 AD2d 876 (3d Dept 1991) and DePaolo v State of New York, 99 AD2d 762 (2d Dept 1984).
In the instant case, claimant has submitted neither a physician's affirmation nor any medical records. She states that she has been unable to consult with a physician "since she has been unsuccessful in obtaining her complete record from Downstate including fetal monitoring strips." In that regard, claimant, who filed no reply papers, does not dispute defendant's assertion that the request for records from the hospital was made only one week before this motion was filed. Nor does claimant dispute that on June 18 and 25, 2010, the hospital sent invoices to counsel, stating that the records, including fetal monitoring strips, would be produced upon payment of the invoices, and that payment has not yet been made.
Defendant argues that the Court should deny Ms. Cadet's motion and permit her to resubmit it after a physician has reviewed the records and provides an affidavit of merit. "There is no prohibition against a subsequent application for late claim relief provided it is made within the applicable [statute of limitations]," i.e., in this case, the two years and six months statute of limitations for medical malpractice. Simmons v State of New York, Ct Cl, October 23, 2007 (unreported, motion no. M-73791, UID #2007-030-573(1)
, Scuccimara, J.).
Accordingly, having reviewed the submissions(2) , IT IS ORDERED that motion no. M-78394 be denied as unnecessary with respect to claimant Alexander Prophete, and be denied without prejudice to a further late claim motion by claimant Alexandra Cadet.
October 26, 2010
New York, New York
Alan C. Marin
Judge of the Court of Claims
1. This and other decisions may be found on the court's website: www.nyscourtofclaims.state.ny.us.
2. The following were reviewed by the court: claimants' notice of motion with affirmation in support and exhibits A through C; and defendant's affirmation in opposition with exhibits A through E.