New York State Court of Claims

New York State Court of Claims
ALLEN v. ROSWELL PARK CANCER INSTITUTE CORPORATION, # 2020-053-551, Claim No. NONE, Motion No. M-95635


Claimant's motion for permission to file a late notice of claim against Roswell Park pursuant to General Municipal Law 50-e is granted. The Court finds that although claimant did not offer a reasonable excuse for a delay in serving the claim that claimant established actual or constructive notice within 90 days and that there was no compelling showing of prejudice.

Case information

UID: 2020-053-551
Claimant short name: ALLEN
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): NONE
Motion number(s): M-95635
Cross-motion number(s):
Claimant's attorney: BROWN CHIARI, LLP
BY: Jeffrey M. Shalke, Esq.
Defendant's attorney: CONNORS, LLP
BY: Michael J. Roach, Esq.
Seth A. Hiser, Esq.
Third-party defendant's attorney:
Signature date: December 15, 2020
City: Buffalo
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant Dianna Allen moves the Court for permission to file a late notice of claim against defendant Roswell Park Cancer Institute Corporation (Roswell Park) pursuant to General Municipal Law 50-e. The notice of motion and supporting affidavit with exhibits were filed on June 25, 2020. Roswell Park's opposing papers were received on July 16, 2020. Claimant's reply affidavit was filed on August 10, 2020. On August 20, 2020, Roswell Park's attorneys requested oral argument, which was granted and then held on September 9, 2020. During the course of oral argument, the Court was advised that Roswell Park had not yet complied with claimant's earlier request to obtain the complete medical records from Roswell Park underlying this claim and which were necessary to support this motion. As a result, oral argument was then adjourned and rescheduled to continue on October 14, 2020, in order to enable Roswell Park to comply with the medical records request, as well as provide the parties time to submit any additional affidavits or exhibits. On September 25, 2020, claimant filed an additional affidavit which included as Exhibit B the Dianna Allen Roswell Park Cancer Institute Medical Records. On October 9, 2020, Roswell Park submitted an additional affidavit in opposition to claimant's motion.(1)

The proposed notice of claim seeks to recover damages for personal injuries which include radial artery bleeding, substantial hematoma, partial paralysis of claimant's right hand and forearm, compartment syndrome requiring an emergent fasciotomy, extensive painful treatments with associated disability, loss of enjoyment of life, pain and suffering, medical expenses and pecuniary injuries. Claimant was admitted to Roswell Park on March 22, 2019 for a right breast lumpectomy and a sentinel lymph node biopsy. The proposed claim arises out of surgery performed at Roswell Park on or about March 26, 2019 when claimant underwent a right arterial line placement at the recommendation of the defendant's agents, servants, employees and/or medical personnel. As a result of that procedure, it is alleged that claimant was injured and had to undergo an additional surgical procedure known as an emergent fasciotomy on March 27, 2019.

The allegations of medical malpractice in the proposed notice of claim state that Roswell Park failed to properly perform a right radial arterial line placement and to properly and timely diagnose and treat radial arterial bleeding, all of which relates to events that occurred during claimant's postoperative treatment after she developed airway complications and was sent to Roswell Park's Intensive Care Unit. The claimant's medical records with Roswell Park(2) indicate that on March 26, 2019, claimant had a right radial arterial line placed by Kathryn Haskins, PA while in the intensive care unit. The claimant alleges that this was improperly performed and resulted in two unreported punctures to claimant's radial artery. The medical records state that claimant reported experiencing increased right hand and forearm pain but there was no indication that the nursing staff alerted a physician of claimant's right hand and forearm pain until the following afternoon on March 27, 2019. A notation in the medical record on March 27, 2019 indicates that claimant was "screaming and moaning of pain" and thereafter the arterial line was removed, however, claimant's swelling and pain became worse. The record indicates that Robert Lohman, M.D. then evaluated claimant and diagnosed her with compartment syndrome. As a result, an emergency right forearm fasciotomy was performed and the surgical notation indicated that "there were two pulsitle bleeding points noted on the volar side of the artery" and that the "2 puncture sites at the radial artery . . . may have been the site of the extravasation." These medical records also indicate that claimant required two additional operations on her right forearm and hand while admitted to Roswell Park. The operative report of March 27, 2019 states that claimant was found to have "paralysis of the intrinsic hand muscles, anesthesia in the distribution of the right median & ulnar nerves, and paralysis of the forearm flexor muscles". The records indicate that claimant was ultimately discharged from Roswell Park on April 5, 2019.

The claimant now seeks leave to serve a late notice of claim pursuant to General Municipal Law 50-e (5) and as the issuance of the decision will now be more than one year and ninety days subsequent to claimant's last day of treatment with Roswell Park, the application, if granted, will be granted nunc pro tunc. Roswell Park opposes this motion on the grounds that claimant has not met her burden to establish that leave to serve a late notice of claim should be granted as she has failed to demonstrate a reasonable excuse for the delay in serving a notice of claim, that there is a lack of actual or constructive knowledge of the facts underlying the claim, and the potential for substantial prejudice exists. In reviewing an application for leave to serve a late notice of claim pursuant to General Municipal Law 50-e (5), courts are to consider three key factors, namely, "whether claimant has shown a reasonable excuse for the delay, whether the public corporation had actual or constructive notice of the essential facts constituting the claim within 90 days of its accrual, and whether the delay in bringing this claim would substantially prejudice the public corporation in maintaining its defense on the merits" (Matter of Dusch v Erie County Med. Ctr., 184 AD3d 1168, 1169 [4th Dept 2020], citing Matter of Turlington v Brockport Cent. Sch. Dist., 143 AD3d 1247, 1248 [4th Dept 2016]).

With respect to the first factor, it is alleged that claimant failed to file the notice of claim within the required 90 days due to her poor health and subsequent rehabilitation. Claimant's counsel states in his affirmation that in claimant's initial meeting she advised her attorneys that she was not aware of the law requiring the filing of a notice of claim in a lawsuit against Roswell Park. No affidavit was submitted by claimant or from her treating physician to substantiate that her health following release from Roswell Park constituted a disability for the court's consideration in this motion. As claimant does not offer a definitive basis for her failure to seek an attorney and timely file a notice of claim or an earlier application for leave to file a late claim, this factor does not weigh in her favor. However, it has been held that the failure to offer a reasonable excuse for a delay in serving a notice of claim is not necessarily fatal to an application if there is timely notice and the absence of prejudice (Matter of Khan v New York City Health & Hosps. Corp., 135 AD3d 940 [2d Dept 2016]; Shaul v Hamburg Cent. Sch. Dist., 128 AD3d 1389 [4th Dept 2015]).

It has previously been held that the second factor should be accorded great weight in evaluating an application for leave to serve a late notice of claim, i.e., whether the public corporation has received actual or constructive notice of the essential facts within 90 days (Matter of Henderson v Town of Van Buren, 281 AD2d 872 [4th Dept 2001]). The possession of medical records alone will not establish that the hospital had actual knowledge, rather this requirement of General Municipal Law 50-e (5) "contemplates actual knowledge of the essential facts constituting the claim, not knowledge of a specific legal theory" (Williams v Nassau County Med. Ctr., 6 NY3d 531, 537 [2006]. It is alleged by claimant that the complications experienced post-operatively resulted from an improper placement of a right radial arterial line by one of the medical staff which led to an emergency right forearm fasciotomy in which the surgeon documented two bleeding points on the volar side of the artery and that two puncture sites at the radial artery were the cause of the arterial leakage. Thus, the Roswell Park records documenting both the initial surgery and the subsequent surgeries on claimant's right forearm provide comprehensive documentation of claimant's hospitalization and the factors and events leading to the injuries alleged in this claim up to and including the date of her release on April 5, 2019. As such, I find from my review of the hospital records included with this motion that they reveal sufficient detail so as to constitute actual notice of the essential facts constituting the claim. Furthermore, I find that the hospital records pertaining to the March 27, 2019 emergency surgery and claimant's subsequent care and treatment "suggest injury attributable to malpractice" (Matter of Khan, supra at 941, citing Williams, supra at 537).

As to the third factor, whether the delay in bringing this claim would substantially prejudice Roswell Park, defendant contends that claimant has submitted no evidence to demonstrate that Roswell Park will not be prejudiced by the granting of this motion. It has been held that the claimant's initial burden and the level of proof necessary requires only a plausible argument supporting that finding and this showing need not be extensive (Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d 455 [2016]). I find that claimant has satisfied this requirement in that the claimant has submitted as some evidence of the lack of prejudice the extensive medical record maintained during claimant's hospitalization with Roswell Park. In response, Roswell Park has presented no evidence in this motion that would establish or even infer that the defendant would be substantially prejudiced. As a result, the Court finds no compelling argument has been raised that Roswell Park would be prejudiced by this Court granting claimant leave to serve a late notice of claim. Accordingly, although the claimant fails to offer a reasonable excuse for her delay in serving a notice of claim, such failure is not fatal where, as here, actual notice exists and there is no compelling showing of prejudice to Roswell Park (Clark v Roswell Park Cancer Inst. Corp., 92 AD3d 1273 [4th Dept 2012]).

Based upon the foregoing, claimant's motion for leave to serve a late notice of claim is granted in accordance with Public Authorities Law 3567 and General Municipal Law 50-e (5). The Court further directs that claimant's application for leave to serve this late notice of claim is granted nunc pro tunc and that the claim is to be properly filed and service completed within forty-five (45) days of the receipt of this decision and order in conformity with the requirements of Court of Claims Act 11 and 11-a and with service of the claim being separately made upon Roswell Park.

December 15, 2020

Buffalo, New York


Judge of the Court of Claims

The following were read and considered by the Court:

1) Notice of motion and affidavit of Jeffrey M. Shalke, Esq., dated July 24, 2020 with annexed Exhibits A-E;

2) Affidavit in opposition of Michael J. Roach, Esq., sworn to July 14, 2020;

3) Reply affidavit of Jeffrey M. Shalke, Esq., sworn to August 6, 2020 with annexed Exhibits A-C;

4) Affidavit of Jeffrey M. Shalke, Eq. sworn to September 23, 2020 with annexed Exhibit A-C; and

5) Affidavit of Seth A. Hiser, Esq., sworn to October 7, 2020.

1. On December 4, 2020, the attorney for Roswell Park submitted to the Court a Supreme Court, New York County decision for the Court's consideration. This was objected to by claimant's counsel. At the conclusion of oral argument on October 14, 2020, neither party requested permission to submit a memorandum of law or additional case law in support of their position. Accordingly, the Court did not consider this case in reaching this decision.

2. Exhibit B to Affidavit of Jeffrey M. Shalke, Esq. dated September 25, 2020.