New York State Court of Claims

New York State Court of Claims
FRAGALE v. THE STATE OF NEW YORK, # 2021-059-058, Claim No. None, Motion No. M-96845


Case information

UID: 2021-059-058
Claimant short name: FRAGALE
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): None
Motion number(s): M-96845
Cross-motion number(s):
Claimant's attorney: Rappaport, Glass, Levine & Zullo, LLP
By: Michael G. Glass, Esq.
By: Mario E. Simmons
Third-party defendant's attorney:
Signature date: September 23, 2021
City: Hauppauge
Official citation:
Appellate results:
See also (multicaptioned case)


This is a motion by Gina Fragale and her husband Joseph Fragale (Movants) for leave to file a late claim against the State of New York (State) pursuant to Court of Claims Act (CCA) 10 [6]. The State takes no position and neither supports nor opposes the motion.

The proposed claim alleges medical malpractice on the part of physicians and hospital employees at Stony Brook University Hospital (SBUH). More specifically, Movants claim that while Gina Fragale was under treatment for Stage IV ovarian and peritoneal cancer at SBUH a foreign body--a lap pad--was left in Gina Fragale's bowel during a surgical procedure which was conducted at SBUH on August 5, 2020. On August 31, 2020 she learned that the pad had been left in her body. On September 7, 2020 she underwent a surgical a procedure at SBUH to remove the pad and repair resulting injuries to the bowel area.(1)

Accordingly, Movants' causes of action accrued either upon the discovery that the foreign object remained in her body (August 31, 2020) or the last day of continuing treatment at SBUH for removal of the pad (September 7, 2020). However, the statute of limitations was tolled beginning on March 20, 2020 through November 3, 2020 due to the Covid-19 pandemic emergency declaration such that Movants' time to file a claim or a notice of intention to file a claim (NI) commenced on November 4, 2020 (Executive Order Nos. 202.8 and 202.67; Brash v Richards, 195 AD3d 582 [2d Dept 2021]). This motion was filed on May 24, 2021 or 201 days from November 4, 2020 and 111 days after the 90-day limitations period in CCA 10.

The Court of Claims is vested with broad discretion to grant or deny an application for permission to file a late claim (Matter of Gonzalez v State of New York, 299 AD2d 675 [3d Dept 2002]). In making a determination to grant or deny such an application, the Court must determine whether the claim would be timely under Article 2 of the CPLR and then consider certain statutory factors (Court of Claims Act 10 [6]). These factors 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 State was substantially prejudiced; (5) whether Movants have any other available remedy; and (6) whether the claim appears to be meritorious (Court of Claims Act 10 [6]). The presence or absence of any one of said factors is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979 [1982]). However, the last factor is the most decisive inasmuch as it is futile to proceed with a meritless claim even if the other factors support the granting of the movant's application (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]; Prusack v State of New York, 117 AD2d 729 [2d Dept 1986]).

Before addressing the six statutory factors, the Court must determine whether Movants' causes of action are timely under CPLR Article 2 (Court of Claims Act 10 [6]). As set forth above, the statute of limitations was tolled during this time period due to the Covid-19 pandemic emergency declarations such that Movants' time to file a claim or a notice of intention to file a claim (NI) commenced on November 4, 2020. The statute of limitations applicable to actions for medical malpractice applies (CPLR 214-a). Since Movants filed the instant motion on May 24, 2021, it is timely under CPLR 214-a.

Turning then to the first factor in the Court's late claim analysis, Movants attribute the delay in filing to the severity of Gina Fragale's illness and Movants' lack of awareness of the 90-day time limit. Since the State offers no opposition, this factor weighs in favor of Movants.

The next three factors--defendant's notice of the issues, opportunity to investigate, and prejudice--are interrelated and therefore frequently considered together. Here, Movants argue that defendant had notice of the essential facts constituting the claim because the remedial surgery was conducted at SBUH. The State does not offer any arguments to refute Movants' arguments as to these three factors. Moreover, the delay of 111 days from the expiration of the 90-day period is not prejudicial. Therefore, the three aforementioned factors weigh in Movants' favor (see Davis v State of New York, UID No. 2018-032-20 [Ct Cl, Hard, J., Mar. 23, 2018]).(2)

The fifth factor to be considered is whether Movants have an alternative remedy for relief. While Movants are able to identify the doctor(s) who allegedly committed medical malpractice and can sue these doctors individually in Supreme Court, Movants also have put forth allegations of malpractice and/or negligence against SBUH. Accordingly, the Court agrees that Movants have no alternative remedy available against SBUH (Stirnweiss v State of New York, 186 AD3d 1444, 1447 [2d Dept 2020]). Therefore, this factor weighs in Movants' favor.

Turning then to the final factor, in order to establish a meritorious cause of action, a movant must establish that his claim is not "patently groundless, frivolous or legally defective, and [that] upon consideration of the entire record, there is cause to believe that a valid cause of action exists" (Rizzo v State of New York, 2 Misc 3d 829, 834 [Ct Cl 2003]; see Court of Claims Act 10 [6]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]). "While this standard clearly places a heavier burden upon a party who has filed late than upon one whose claim is timely, it does not, and should not, require [m]ovant to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit [him] to file a late claim" (Williams v State of New York, UID No. 2016-040-100 [Ct Cl, McCarthy, J., Nov. 16, 2016]; see Matter of Santana v New York State Thruway Auth., 92 Misc 2d at 11-12).

Movants have established the appearance of merit of the proposed claim because they have submitted an expert medical affidavit to support the allegations contained in the proposed claim (see Wood v State of New York, 45 AD3d 1198 [3d Dept 2007]).

Upon balancing all of the factors in Court of Claims Act 10 (6), it is hereby:

ORDERED that Movants' motion for permission to file and serve a late claim (M-96845) is GRANTED; and it is further

ORDERED, that Movants are directed to file and serve the claim appended to the instant motion in compliance with 11 and 11-a of the CCA within sixty (60) days of the filing of this decision and order with the Clerk of the Court of Claims.

September 23, 2021

Hauppauge, New York


Judge of the Court of Claims

1. Her last chemotherapy treatment at SBUH is alleged to have been on an unspecified date in November 2020.

2. Unpublished decisions and selected orders of the Court of Claims are available at