New York State Court of Claims

New York State Court of Claims
HOWARD v. THE STATE OF NEW YORK, # 2021-041-053, Claim No. NONE, Motion No. M-97072


Uncontested application to file and serve late claim is granted where claim alleging that defendant negligently tested and/or misreported result of infant's genetic test causing onset of otherwise preventable degenerative muscular condition has appearance of merit and defendant had prompt notice of facts and circumstances underlying the incident.

Case information

UID: 2021-041-053
Individually and as parents and
natural guardians of AELIN HOWARD,
an infant
Claimant short name: HOWARD
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): NONE
Motion number(s): M-97072
Cross-motion number(s):
Claimant's attorney: STEPHEN R. FOLEY, LLC
By: Stephen R. Foley, Esq.
Defendant's attorney: HON. LETITIA JAMES
New York State Attorney General
By: Michael T. Feeley, Esq.
Assistant Attorney General
Third-party defendant's attorney:
Signature date: October 28, 2021
City: Albany
Official citation:
Appellate results:
See also (multicaptioned case)


Claimants move for permission to file and serve a late claim. Defendant has chosen not to submit any opposition to the claimants' application.

The proposed claim alleges that the infant claimant Aelin Howard (Aelin) was born at Oishei Children's Hospital in Buffalo, New York on March 14, 2021, and immediately thereafter, a blood specimen was drawn from Aelin, as mandated by New York Public Health Law 2500-A, and sent to "New York State's David Axelrod Institute, Wadsworth Center . . . for evaluation and testing." Among other potential diseases and conditions tested for is "a genetic test to determine if there is a gene mutation . . . [of] the survival motor neuron 1 gene (SMN1)."

The proposed claim asserts that if there is "a gene mutation in the SMN1 gene" a condition called "Spinal Muscular Atrophy (SMA)" will develop which "leads to progressive muscle weakness and atrophy." The claim further alleges that "there are certain specific medical treatments which if administered following early detection of the gene mutation, have the capability of replacing the non-working SMN1 gene with a new working copy of the SMN gene."

The proposed claim alleges that:

"The specimen obtained from Aelin was received by the New York State lab on or about March 17, 2021, and shortly thereafter, on or about March 23, 2021, the lab reported, 'All Tests Screen-Negative No Follow-Up Action Requested.' The test screen for the SMA indicator revealed that the SMN1 gene was present."

The proposed claim states that in early to mid-May 2021, claimants Cody and Brittainy Howard began to notice muscular weakness in Aelin and had Aelin examined by Aelin's pediatrician, who referred Aelin to the Dent Pediatric And Adolescent Center which, after examination on May 17, 2021, referred Aelin to "a pediatric neuromuscular specialist at the University of Rochester Medical School."

On or about May 21, 2021, it was confirmed by further testing that Aelin's SMN1 gene had mutated and Aelin was suffering from SMA, "despite the negative test screen for SMA as reported by the New York State Newborn Screening Program."

On May 27, 2021, "Aelin received the gene infusion therapy to replace the non-working SMN1 gene."

The proposed claim alleges that:

"17. Upon information and belief, as previously stated, the State, through its prenatal screening/testing program conducted at the David Axelrod Institute, Wadsworth Center laboratories, failed to accurately test and/or accurately evaluate the specimen and/or negligently failed to report and/or incorrectly report and/or report on the testing of the specimen and more particularly the genetic marker which forms the basis of an SMA diagnosis. Absent an incorrect and/or failed report, claimant, Aelin Howard, would have undergone genetic therapy sooner, and would have avoided the permanent effects of SMA which are now manifest.

18. Upon information and belief, this delay in diagnosis, and ultimately in treatment, a result of the initial incorrect negligent testing and/or reporting, caused claimant, Aelin Howard, to lose critical time to thwart the onset of SMA, and with the onset of the disease she will now suffer the effects of permanent weakness in some, if not all, of her limbs and may also be confined to a wheelchair."

19. As a result of the Respondent's negligence, claimant, Aelin Howard, has sustained various severe and permanent injuries, internal as well as external, including severe neuromuscular impairment which will dramatically impact the balance of her life.

20. Further, as a result of Respondent's negligence, Cody and Brittainy Howard will be compelled to expend large sums of money for medical bills, medical care and treatment for a long period of time, all as a result of Respondent's lack of due care."

Claimants' attorney made this application on August 13, 2021, seeking permission to file and serve a late claim.

Court of Claims Act 10 (6) provides that the Court, upon application and in its discretion, may permit the late filing and service of a claim "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."

The claimants' negligence cause of action arose between March 17, 2021 and May 21, 2021. Assuming that the ninety-day period to serve and file a claim set forth in Court of Claims Act 10 (3) began, at the earliest, on March 17, 2021 the claim would have been required to be filed and served on or before June 15, 2021. The application to file and serve a late claim was made on August 13, 2021, less than sixty days after the earliest possible date on which ninety-day period to serve and file a claim had expired.

CPLR 214 provides a three-year period to commence an action for negligence and the negligence cause of action is not time-barred by CPLR Article 2.

In determining the application, Court of Claims Act 10 (6) provides that:

"[T]he court shall consider, among other factors, whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy."

In reviewing a late claim application, "the Court of Claims is required to consider, among other factors, those enumerated in Court of Claims Act 10 (6), no one factor being controlling" (Matter of Donaldson v State of New York, 167 AD2d 805, 806 [3d Dept 1990]; see Matter of Duffy v State of New York, 264 AD2d 911, 912 [3d Dept 1999]). In fact, "[n]othing in the statute makes the presence or absence of any one factor determinative" (Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979, 981 [1982]).

Further, "it is well settled that the Court of Claims' broad discretion in this area should be disturbed only in the face of clear abuse" (Calco v State of New York, 165 AD2d 117, 119 [3d Dept 1991], lv denied 78 NY2d 852 [1991]).

Defendant has chosen not to oppose the claimants' late claim application in any respect, including as to reasonable excuse for delay, notice and opportunity to investigate the claim and whether late filing and service would prejudice the defendant. The Court, of course, remains cognizant that "it would be futile to permit a defective claim to be filed even if the other factors . . . supported the granting of the claimant's motion (Savino v State of New York 199 AD2d 254, 255 [2d Dept 1993]).

Section 10 (6) requires that the proposed claim not be "patently groundless, frivolous or legally defective, and the record as a whole must give reasonable cause to believe that a valid cause of action exists" (Sands v State of New York, 49 AD3d 444 [1st Dept 2008]; see Calverley v State of New York, 187 AD3d 1426, 1427 [3d Dept 2020]; Dippolito v State of New York, 192 Misc 2d 395 [Ct Cl 2002]; Remley v State of New York, 174 Misc 2d 523 [Ct Cl 1997]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]). In Witko v State of New York (212 AD2d 889, 891 [3d Dept 1995]), the court noted that a proposed claim offered in a section 10 (6) application need only have "the appearance of merit."

The Court has carefully considered the uncontradicted allegations of the proposed claim and finds that it demonstrates "appearance of merit."

Based upon a balancing of the factors set forth in section 10 (6) of the Court of Claims Act, the Court grants claimants' application to file and serve a late claim.

Claimants are directed to file and serve their claim in compliance with sections 11 and 11-a of the Court of Claims Act within sixty (60) days of the filing of this decision and order with the Clerk of the Court of Claims.

October 28, 2021

Albany, New York


Judge of the Court of Claims

Papers Considered:

1. Claimants' Notice of Motion, filed August 13, 2021;

2. Affirmation of Stephen R. Foley, dated August 12, 2021, and attached exhibits;

3. Proposed Claim, verified by Cody Howard and Brittainy Howard on August 12, 2021;

4. Letter of Michael T. Feeley, Assistant Attorney General, dated September 28, 2021.