New York State Court of Claims

New York State Court of Claims
GOEHRIG v. ROSWELL PARK CANCER INSTITUTE CORPORATION, # 2021-053-504, Claim No. NONE, Motion No. M-95975

Synopsis

Movant's motion for permission to serve a late notice of claim nunc pro tunc upon Roswell Park Cancer Institute is denied as to the personal injury claims and granted as to the wrongful death claim. The Governor's Executive Orders did not apply to extend the applicable statute of limitations; CPLR 214-c applies but the motion remains untimely for the personal injury claims; and the defense of equitable estoppel does not apply to these facts.

Case information

UID: 2021-053-504
Claimant(s): JAMES P. GOEHRIG, Individually and as Preliminary Executor of the Estate of SANDRA B. GOEHRIG, Deceased
Claimant short name: GOEHRIG
Footnote (claimant name) :
Defendant(s): ROSWELL PARK CANCER INSTITUTE CORPORATION
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): NONE
Motion number(s): M-95975
Cross-motion number(s):
Judge: J. DAVID SAMPSON
Claimant's attorney: BLACK, LYLE & HABBERFIELD, LLP
BY: Kevin M. Habberfield, Esq.
Defendant's attorney: GIBSON McASKILL & CROSBY, LLP
BY: Craig R. Watson, Esq.
Third-party defendant's attorney:
Signature date: March 12, 2021
City: Buffalo
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Movant James P. Goehrig, Individually and as Preliminary Executor of the Estate of Sandra B. Goehrig, deceased, moves the Court for permission to serve a late notice of claim nunc pro tunc upon defendant Roswell Park Cancer Institute Corporation (Roswell Park) pursuant to General Municipal Law 50-e (5). The notice of motion and supporting affidavit with exhibits were filed on October 2, 2020. Roswell Park's request to extend the time to serve opposing papers was granted and Roswell Park's affidavit in opposition and affidavit of Verita Jones was filed on or about December 10, 2020. Movant's reply affidavits were filed on December 14, 2020. On or about January 6, 2021, the movant's attorney filed a reply affidavit and an affidavit of movant James P. Goehrig. The movant's attorney's request for oral argument was granted and the motion was then scheduled for January 27, 2021.

The movant alleges that Sandra B. Goehrig, the decedent, underwent cancer treatment at Roswell Park from December 1, 2017 through October 3, 2018. During this time period it is alleged that the decedent received chemotherapy, transfusions, bone marrow transplant and other treatments for cancer. These procedures required intravenous and oral medication to control her pain, which were administered to her by nurses at Roswell Park during inpatient and outpatient visits. It is further alleged that during the course of her treatment at Roswell Park that the decedent received intravenous pain medication relating to a bone marrow biopsy, which resulted in a severe infection in March of 2018. As a result, her bone marrow transplant was delayed until the infection had cleared. Thereafter, the decedent had the transplant and remained an inpatient at Roswell Park for approximately six weeks.

It is alleged that on or about June 17, 2018, the decedent began experiencing intense stomach cramps and pain and was admitted to Roswell Park on June 18, 2018 with suspected graft versus host disease (GVHD) but that it was then discovered that the decedent had, in fact, developed a rare, waterborne bacterial infection. The decedent was given different antibiotics to treat the infection but then became septic. As a result of the infection, the decedent was unable to receive chemotherapy treatment for her cancer and it is alleged that this permitted the cancer to progress. It is alleged that Roswell Park was unable to treat the infection and alleviate the decedent's pain, despite the dosage of pain medication administered. The decedent remained at Roswell Park and never recovered from the infection and resulting complications that it is claimed to have ultimately led to her death on October 3, 2018.

The proposed notice of claim seeks to recover damages for personal injuries that occurred during movant's hospitalization at Roswell Park between December 1, 2017 and October 3, 2018. The specific date(s) of her admissions and cancer treatment dates are not set forth as movant states that he was unable to obtain the decedent's Roswell Park records prior to filing this motion. The proposed notice of claim states allegations of negligence and medical negligence, including unauthorized access to patient medicines; unauthorized access to patient records; tampering, adulteration, and contamination of patient medications; falsification of patient records; failure to communicate and document modifications and adulterations in patient records and medication documentation; negligent hiring and retention of nursing staff; improper oversight, supervision and control of nursing staff; res ipsa loquitur; and violation of New York and Federal rules and regulations relating to the administration of patient medicine and pain medication. The proposed notice of claim seeks to recover damages for the decedent's personal injuries that occurred during her hospitalization and cancer treatments at Roswell Park and for her wrongful death; and a wrongful death claim by her spouse, movant James P. Goehrig.

The movant was appointed Preliminary Executor on September 3, 2020 and this motion was filed on October 2, 2020. Movant requests that this Court deem the proposed notice of claim included with this motion to satisfy the thirty day condition precedent to commencement of an action pursuant to Public Authorities Law 3567 (1) and permit this action to proceed immediately upon the filing of the claim with the Clerk of the Court of Claims. Movant also requests that the Court grant permission to file a Notice of Claim nunc pro tunc upon Roswell Park pursuant to General Municipal Law 50-e (5) and deem this filing timely.

In support of this motion, movant submits an affidavit in which he avers that during the course of the decedent's cancer treatment at Roswell Park beginning on December 1, 2017, she was prescribed intravenous pain medication by various nurses during her inpatient and outpatient visits, as well as through a patient controlled analgesia (PCA) pump to be administered as she needed it. Movant avers that his wife suffered a severe and unusual infection after a visit to Roswell Park for a bone marrow biopsy that was to precede a bone marrow transplant and that the infection delayed the transplant and required that she remain an inpatient at Roswell Park. He also avers that on or about June 17, 2018, his wife again became severely ill with stomach cramps and pain, that he took her to Roswell Park and she was admitted on June 18, 2018 for suspected GVHD, which was later determined to be a severe infection. He avers that his wife never recovered from the infection and subsequent complications that resulted in her death on October 3, 2018. The movant states at paragraphs 13 and 14 of his affidavit that:

"[P]roviders at Roswell Park told us that she had died from complications of her cancer, with no mention of drug diversion or contamination of her pain medications. We were not informed that a nurse was under investigation or had been suspended and charged with stealing pain medication and replacing it in the syringes with contaminated tap water. Had we been advised of this, we would have obtained an autopsy. We had asked about an autopsy and Roswell Park staff told us not to do one. We trusted that the information provided to us was true and accurate, never imagining that a nurse would tamper with the pain medications of severely ill cancer patients at Roswell Park."

The movant then states at paragraph 15 of his affidavit that he was emotionally distraught after the death of his wife and that after learning of the federal indictment and arrest of the Roswell Park employee that he then performed further research and came across several articles detailing Ms. Mulvey's and Roswell Park's negligence and realized that the time frame for the medication diversion and tampering coincided with his wife's treatment at Roswell Park, which led him to retain his attorneys on July 29, 2020.

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 movant 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]). Roswell Park is a public authority and the Court's analysis must first begin with Public Authorities Law 3567 (1) (a), which provides that it is a condition precedent to bringing an action that service of a notice of claim be made within the ninety day time limitation of General Municipal Law 50-e. A claim against Roswell Park for personal injuries must be commenced within one year and ninety days after the happening of the event upon which the claim is based (Public Authorities Law 3567 [1] [c]; General Municipal Law 50-e [5]). A wrongful death claim must comply with Public Authorities Law 3567 (1) (d) and a notice of claim for wrongful death pursuant to General Municipal Law 50-e must be served with ninety days of the appointment of the estate's representative (Public Authorities Law 2980). The wrongful death action must then be commenced no later than two years from the date of death (Public Authorities Law 2981; Gibson v Roswell Park Cancer Inst. Corp., 21 Misc3d 638, 641-642 [2008]). Roswell Park does not contest the timeliness of movant's motion for leave to serve a late notice of claim as to the wrongful death claim. The defendant's opposition is to the decedent's personal injury claims only. And with respect to the time periods in the Public Authorities Law cited above, this Court does not have discretion to grant leave to serve a late notice of claim if doing so would permit the filing and service of a notice of claim beyond the time prescribed to commence an action against a public authority (CPLR 201).

In the present action, as movant was unable to obtain her medical records from Roswell Park prior to filing this motion for permission to serve a late notice of claim, we do not know the exact date of the decedent's admission or discharge or of the cancer treatments at Roswell Park other than treatment commenced on December 1, 2017 and continued up to the date of death on October 3, 2018. Assuming for purposes of this motion that the applicable ninety day time period commenced with the decedent's death on October 3, 2018, a notice of claim alleging the proposed claims of negligence and medical negligence had to be served by January 1, 2019. Movant had one year and ninety days from October 3, 2018 or by January 1, 2020 within which to bring a motion for permission to serve a late notice of claim. As the present motion was not filed until October 2, 2020, it is untimely as to the personal injury claims and must be denied unless a legal basis exists that tolled and/or extended the time to commence this action.

The movant first contends that the Governor's Declaration of Disaster Emergency in New York State in Executive Order 202 and continuing orders (Governor's Executive Orders) thereafter tolled and extended until at least October 4, 2020, the time for movant to file this motion. However, the Governor's Executive Orders do not apply to the present claim as the applicable statute of limitations expired on January 1, 2020, over two months prior to the initial March 20, 2020 executive order. The Governor's Executive Orders do not apply to the personal injury claims unless there is a legal basis to extend the applicable statute of limitations beyond March 20, 2020, the effective date of the first executive order.

Movant raises two new legal arguments in his reply papers to address the issue of the statute of limitations. It has been consistently held that new arguments in reply papers are not properly before the court as the function of reply papers is to address arguments in opposition to the position originally taken by the movant and not to permit the movant to introduce new arguments (Dunn v County of Niagara, 161 AD3d 1555 [4th Dept 2018]; Mikulski v Battaglia, 112 AD3d 1355 [4th Dept 2013]. Although the Court would normally decline consideration of movant's arguments raised for the first time in reply papers, both attorneys previously appeared before this Court in a similar action with a motion for leave to serve a late notice of claim on Roswell Park in which movant's attorney raised identical arguments for the first time in his reply papers. In anticipation that the movant's attorney would raise similar arguments in this action, Roswell Park's attorney addressed both arguments in his opposing affidavit and memorandum of law. As a result, the Court finds that no prejudice has resulted to Roswell Park and as such, will consider the new legal arguments raised in movant's reply papers.

Movant first contends that CPLR 214-c, more commonly known as the "toxic tort" statute of limitations, applies to these facts and extends movant's time in which to serve a notice of claim. This statute is expressly limited to cases of injuries that are "caused by the latent effects of exposure to any substance or combination of substances." Movant's attorney alleges in his reply affidavit that the decedent was injured after she was unknowingly injected with an unauthorized substance, i.e., the contaminated water in place of the intravenous pain medication, and that at no time was the decedent ever informed by Roswell Park prior to her death that she had been exposed to this substance. It is further alleged that movant was also unaware of his wife's potential exposure to the toxic substance until 2019 (Reply Affidavit of Kevin M. Habberfield, Esq. at paragraphs 7 through 9). Movant's attorney contends that pursuant to CPLR 214-c, the accrual of the claim did not commence until the discovery of the potential exposure in June of 2020 (Reply Affidavit of Kevin M. Habberfield, Esq. at paragraph 10). CPLR 214-c has been held to apply to any substance in any form (Prego v City of New York, 147 AD2d 165, [2d Dept 1989]). As such, the injection of the contaminated water in place of the intravenous pain medication constitutes a "substance" for purposes of CPLR 214-c.

Roswell Park contends that CPLR 214-c does not apply as movant does not claim an injury caused by the latent effects of a harmful substance. The defendant references movant's allegations at paragraphs 6 and 8 of his affidavit that the decedent suffered from unyielding pain and infections between March 2018 and the date of her death, October 3, 2018. The defendant also refers to movant's allegation at paragraph 10 of his affidavit that "[o]nce they were able to identify that she suffered infection by a rare, waterborne bacteria, the Chief of Infectious Disease spoke with my wife and I" and at paragraph 10 that the decedent became septic. The defendant argues that movant's statements in his affidavit make clear that both he and the decedent were aware of the alleged injuries during the course of his wife's treatment and as such, they do not implicate any latent effects of exposure to a harmful substance. However, the Court of Appeals has held that the term "latent" in this statute means that even a few hours of latency is enough to justify the extension of the statute of limitations authorized by that subdivision (Giordino v Market Am., Inc., 15 NY3d 590, 599 [2010]). Accordingly, I find that movant has alleged an injury caused by the latent effects of a substance within the meaning of CPLR 214-c.

The time period to initiate a claim under this statute is set forth at CPLR 214-c (2), and it has been held that a claim begins to accrue "when the injured party discovers the primary condition on which the claim is based" (Matter of New York DES Litig., 89 NY2d 506, 509 [1997]) and that "[a]ll that is necessary to start the limitations period is that [movant] be aware of the primary condition for which damages are sought" (Whitney v Quaker Chem. Corp., 90 NY2d 845 [1997]). This statute further provides at CPLR 214-c (3) that when a notice of claim is required, the claim shall accrue on the earlier of the date of discovery of the injury caused by the latent exposure to a substance or the date when through the exercise of reasonable diligence the injury should have been discovered.

Movant states in his affidavit that during his wife's treatment, Roswell Park was able to identify the type of infection his wife had contracted, and that he and his wife were told by the Chief of Infectious Disease at Roswell Park that "she suffered infection by a rare water-borne bacteria," for which she was given multiple antibiotics but was unable to resume her cancer treatment due to the infection (Movant's Affidavit at paragraphs 9 and 10). Movant states that throughout this time period, his wife continued to receive pain medication that did not alleviate her pain (Movant's Affidavit at paragraph 12). He states that upon his wife's death, the providers at Roswell Park told him that:

"[the decedent] had died from complications of her cancer, with no mention of drug diversion or contamination of her pain medications. We were not informed that a nurse was under investigation or had been suspended and charged with stealing pain medication and replacing it in the syringes with contaminated tap water. Had we been advised of this, we would have obtained an autopsy. We had asked about an autopsy and Roswell Park staff told us not to do one."

Movant states in his affidavit that when he first learned of the federal criminal indictment of Kelsey Mulvey, he then researched and came across several articles detailing Kelsey Mulvey's activities at Roswell Park and Roswell Park's negligence (Movant's Affidavit at paragraph 15). Movant's attorney states in his reply affidavit that movant was unaware of the decedent's exposure to the toxic substance until June of 2019, referring to movant's reply affidavit (Reply Affidavit of Kevin M. Habberfield, Esq. at paragraph 9). However, nowhere within movant's affidavit or reply affidavit does he specifically state when he first became aware of the federal criminal indictment. Roswell Park's opposing papers include in Exhibit C two articles from the Buffalo News, one dated September 27, 2018 prior to Kelsey Mulvey's criminal indictment and one issued on June 4, 2019, the day that the criminal indictment was reported. Since the first Buffalo News article appeared about one week prior to the decedent's death, I conclude that movant's reference that he became aware of the federal indictment was after the Buffalo News released the article on June 4, 2019. Accordingly, I presume that it is movant's contention that he first became aware of the potential cause of his wife's infection when he connected it with the criminal indictment of Kelsey Mulvey announced June 4, 2019.

In opposition, the defendant contends that the discovery of the injury coincided with decedent's hospitalization as movant's statements in his affidavit make clear that he and his wife had an awareness of her infection and injuries during the course of her treatment at Roswell Park (Affidavit of Craig R. Watson, Esq. at paragraph 36). As such, Roswell Park contends that the discovery of the alleged injury or its symptoms occurred during the decedent's hospitalization, not when movant later alleges to have discovered the cause of the injury.

The defendant also includes the affidavit of Verita Jones, an executive assistant at Roswell Park. Ms. Jones states that on September 27, 2018, a certified letter, return receipt requested was mailed to the decedent, which was received and signed for by movant on October 2, 2018, one day prior to his wife's death (Affidavit of Verita Jones, Exhibits A and B). In summary, the letter advised that based upon Roswell Park's ongoing investigation it was suspected that between February and June 2018 one of its employees diverted injectable narcotics from its inpatient units and replaced some of the medication in the syringes with water and then put them back for patient use. This, Roswell Park stated caused some of the narcotics to become contaminated with a waterborne bacteria called Sphingomonas which was believed to have contributed to bloodstream infections in at least six patients. The letter further advised that "[s]ince you received IV narcotics at Roswell at some point between February and June, we are reaching out to notify you of a potential risk of exposure to Sphingomonas" and that if you had experienced certain symptoms to contact your physician at Roswell Park (Affidavit of Verita Jones, Exhibit A). In his reply affidavit, movant admits that he received, read and signed for this letter but alleges that he did not understand whether the letter was specific to his wife as it did not identify her as having been specifically involved (Reply Affidavit of Movant at paragraphs 3 through 6).

The Court agrees with the defendant that the application of CPLR 214-c (3) requires the accrual of this claim to commence at the time that the physical condition was discovered, i.e., when the infection was treated during her hospitalization and up until the date of her death, October 3, 2018. Whether the movant understood the content of the letter of September 27, 2018 or whether it affected his wife has no impact upon this determination. The movant seeks to apply the date that he later discovered the potential cause of his wife's infection, however, CPLR 214-c (3) makes no mention and does not encompass claims based upon the discovery of the cause of the injury.

For claims alleging that the accrual date should be measured from the time of the discovery of the cause of the injury, CPLR 214-c (4) provides in relevant part that the injured party is also required to allege and prove that technical, scientific or medical knowledge and information sufficient to ascertain the cause of the decedent's injury had not been discovered, identified or determined prior to the expiration of the period within which the action or claim would have been authorized, i.e., one year and ninety days in the present claim. Movant makes no showing pursuant to CPLR 214-c (4) and has presented no proof that scientific or medical knowledge and information prevented a diagnosis of a waterborne bacterial infection to a date beyond movant's hospitalization in June of 2018. In fact, the Roswell Park letter of September 27, 2018 clearly demonstrates that they had connected the criminal activities of Kelsey Mulvey as causing six patients to date contracting a waterborne bacterial infection. Furthermore, movant's contention that the accrual date of this claim should be extended until the time when he was able to ascertain the cause of the injury is not supported in case law (see Giordano, supra at 601).

As such, even if CPLR 214-c is applied to this claim, movant was still required to serve a notice of claim within 90 days of the date of the decedent's death on October 3, 2018 or bring a motion for leave to serve a late notice of claim within one year and ninety days or by January 1, 2020. Accordingly, applying CPLR 214-c, this motion remains untimely.

Movant next contends that the doctrine of equitable estoppel applies to these facts and that Roswell Park should be estopped from invoking the applicable statute of limitations because it knowingly concealed that the decedent had been injured as a result of the acts of the nurse and the hospital's negligence. The doctrine of equitable estoppel will apply to prevent a defendant from pleading the statute of limitations if the "[movant] was induced by fraud, misrepresentations or deception to refrain from filing a timely action" (Zumpano v Quinn, 6 NY3d 666 [2006], citing Simcuski v Saeli, 44 NY2d 442, 449 [1978]). Equitable estoppel is considered an extraordinary remedy that should be invoked sparingly and only under exceptional circumstances (Storey v Sum, 151 AD2d 991 [4th Dept 1989]). In order for the doctrine to apply, it has been held that the movant may not rely on the same act that forms the basis for the claim, the later fraudulent misrepresentation must be for the purpose of concealing the former tort (Ross v Louise Wise Servs., Inc. 8 NY3d 478 [2007]); and it is movant's burden to establish that subsequent and specific actions by the defendant somehow kept him from timely serving a notice of claim (Zumpano, supra at 674). Furthermore, it has been held that equitable estoppel must be established by " 'clear and convincing proof' and . . . 'general accusation[s] of . . . deception not based on personal knowledge' are insufficient" (Dombroski v Samaritan Hosp., 47 AD3d 80 [3d Dept 2007], citing to Central Fed. Sav. v Laurels Sullivan County Estates Corp., 145 AD2d 1, 6 [1989], lv denied 76 NY2d 704 [1990]).

Movant submits as evidence of the defendant's misrepresentations that an unnamed Roswell Park doctor told movant that he should not have an autopsy performed and that unnamed members of the nursing staff, when asked about the content of the Roswell Park letter of September 27, 2018, told him that he had nothing to worry about as the nurse did not work in that wing. Relying on what the doctor and nursing staff told him, the movant stopped looking into it (Reply Affidavit of Movant at paragraphs 7 through 9). The movant then states that he returned to Roswell twelve days after his wife's death with food to share with the health care workers to fulfill his wife's dying wishes and that even then, "no one told me that she had been injured while a patient there" (Reply Affidavit of Movant at paragraphs 15 and 16). Movant did not explain why he failed to raise either the existence of the September 27, 2018 letter or his conversations with the doctor and nurses about the letter in his initial affidavit in support of this motion. In fact, at paragraph 13 of movant's affidavit, he states "[w]e were not informed that a nurse was under investigation," which is directly contrary to statements in his reply affidavit where he admitted receiving the September 27, 2018 letter that discussed an ongoing investigation involving one of its staff members diverting injectable narcotics and replacing it with water that had caused a waterborne bacterial infection in at least six patients.(1)

In examining the alleged hearsay statements of an unidentified doctor and members of the nursing staff at Roswell Park, the Court is unconvinced that these statements, even if true, establish purposeful conduct on the part of Roswell Park to conceal its negligence and induce movant to refrain from filing a claim. The statement attributed to the Roswell Park doctor is that he/she did not recommend an autopsy. Prior to the decedent's death, it was already known by movant and his wife that she had contracted a waterborne bacterial infection for which she was hospitalized on June 18, 2018 and continued to be treated until her untimely death. The movant fails to allege how an autopsy, whose purpose is to determine the cause of death, would disclose anything beyond identifying infection or sepsis as a cause or the cause of death. An autopsy would not disclose the criminal activities of Kelsey Mulvey or that she had administered tampered syringe(s) to the decedent or details of an ongoing investigation at Roswell Park. These matters were all addressed by Roswell Park in the September 27, 2018 letter. As a result, it cannot be concluded that the alleged statement attributed to the doctor was stated with a deliberate purpose to conceal that the decedent had been injected with a tampered syringe or to induce movant not to pursue a claim.

In order for the alleged statements attributed to the unidentified nurses to trigger the application of equitable estoppel, movant would have to establish that these statements were knowingly made by the nurses to purposefully conceal that the decedent had been infected by a syringe tampered with by Kelsey Mulvey and that they did so with deliberate intent to dissuade movant from investigating this further and filing a claim against Roswell Park (see Kuhlman v Westfield Mem. Hosp., 212 AD2d 1007 [4th Dept 1995]). What movant is requesting this Court to conclude is that the nurses failure to disclose wrongdoing by Roswell Park warrants application of the doctrine of equitable estoppel. This allegation on its own falls short, as does the final statement allegedly made by unidentified nurses to movant twelve days after his wife's death. With allegations of this type, the courts have consistently held that "mere silence or failure to disclose the wrongdoing is insufficient" to trigger the application of the doctrine of equitable estoppel (Ross, supra at 491-492; citing to Zoe G. v Frederick F.G., 208 AD2d 675, 675-676 [2d Dept 1994]). As the doctrine of equitable estoppel requires a showing by movant of deliberative and specific acts designed to prevent movant from pursuing a claim, I find that the allegations made by movant do not allege a sufficient basis to warrant its application (Storey v Sum, 151 AD2d 991, 992 [4th Dept 1989]); Zumpano supra at 674 [2006]). Accordingly, I do not find that the statements attributed to the unidentified Roswell Park doctor or nurses rise to the level of intentional improper conduct, knowingly false statements or statements made to fraudulently induce movant not to pursue an action against Roswell Park (Schrull v Weis, 166 AD3d 829, 832 [2d Dept 2018]; Hazel v Montefiore Med. Ctr, 243 AD2d 344 [1st Dept 1997]; Kuhlman, supra at 1007-1008).

For all of the reasons stated above, the Court finds that the Governor's Executive Orders do not apply to the present claim as the applicable statute of limitations expired on January 1, 2020, prior to their effective date; that CPLR 214-c (3) is applicable but does not further extend the applicable statute of limitations for the personal injury claim; and that the movant's defense of equitable estoppel will not bar Roswell Park from asserting the ninety day statute of limitations for serving a notice of claim or the one year and ninety day statute of limitations for filing and serving a claim or for bringing a motion for permission to serve a late notice of claim as to the personal injury claim. Finally, as the movant failed to bring this motion within the time period for which an action against Roswell Park may be commenced for the personal injury claims, the Court need not address the arguments relating to the three key factors set forth at General Municipal Law 50-e (5). Accordingly, movant's motion for permission to serve a late notice of claim as to the personal injury claims for permission to serve a late notice of claim nunc pro tunc is denied; and that movant's motion as to the wrongful death claim is granted, that Roswell Park may conduct a General Municipal Law 50-h hearing and that all other statutory conditions precedent are deemed satisfied.

March 12, 2021

Buffalo, New York

J. DAVID SAMPSON

Judge of the Court of Claims

The following were read and considered by the Court:

1) Notice of motion and affidavit of Kevin M. Habberfield, Esq., dated September 30, 2020; Affidavit of James P. Goehrig sworn to September 29, 2020;

2) Affidavit in opposition of Craig R. Watson, Esq., sworn to December 9, 2020 with annexed Exhibits A-D; Affidavit of Verita Jones sworn to December 7, 2020;

3) Reply affidavit of Kevin M. Habberfield, Esq., sworn to January 4, 2021; Reply affidavit of James P. Goehrig sworn to December 30, 2020; and

4) Memorandum of Law of Craig R. Watson, Esq. dated December 9, 2020.


1. The September 27, 2018 letter was also signed by Brahm Segal, M.D., the Chief of Infectious Disease. This would appear to be the same doctor that movant identified as the Chief of Infectious Disease in paragraph 10 of his affidavit, who movant states spoke to him and his wife and told them that she had contracted a rare, waterborne bacterial infection.