New York State Court of Claims

New York State Court of Claims
MITCHELL v. STATE OF NEW YORK, # 2018-018-930, Claim No. NONE, Motion No. M-91494


Application for filing a late claim is granted.

Case information

UID: 2018-018-930
Claimant short name: MITCHELL
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): NONE
Motion number(s): M-91494
Cross-motion number(s):
Claimant's attorney: CHERUNDOLO LAW FIRM, PLLC
By: Robin C. Zimpel-Fontaine, Esquire
Defendant's attorney: ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
No Appearance
Third-party defendant's attorney:
Signature date: April 20, 2018
City: Syracuse
Official citation:
Appellate results:
See also (multicaptioned case)


Movant brings a timely motion seeking permission to file a late claim pursuant to Court of Claims Act section 10 (6) (Court of Claims Act 10 (6); CPLR 214-a). Defendant does not oppose the motion.

The proposed claim asserts that Movant was a patient at the State University of New York Upstate Medical University (hereinafter University Hospital) Community Campus from November 10, 2015 through November 13, 2015, for total knee replacement surgery. Movant alleges that Timothy Damron, M.D., an employee of Upstate Orthopedics, LLP, severely damaged her left popliteal artery. Movant had pain, numbness, tingling, decreased pulses, and coolness in her left foot and lower leg. On November 13, 2015, she was discharged to Van Duyn Center for Rehabilitation and Nursing (Van Duyn) for further care. Thereafter, Movant was discharged and presented to University Hospital, Community Campus for continued symptoms in her left foot and leg. On November 23, 2015, Movant was diagnosed with damage to her popliteal artery, and it was attributed to her knee replacement surgery. In March 21, 2016, Movant was diagnosed with peripheral artery disease which she alleges was caused by the damage to her popliteal artery from the surgery. Movant has extreme pain when walking, must ambulate with a cane, and requires home services.

On an application for permission to file a late claim, consideration must be given to the six factors listed in Court of Claims Act section 10 (6) and any other relevant factors. A balancing of all of the factors in the discretion of the Court may warrant the granting of the application to file and serve a late claim; no one factor is determinative (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 [1982]; Ledet v State of New York, 207 AD2d 965 [4th Dept 1994]).

The first factor is whether the proposed claimant has an acceptable excuse for failing to timely file and serve a claim. In the Movant's memorandum of law, she argues that the delay in filing her claim is attributable to her belief that her symptoms and condition would improve. Following retention of counsel in March 2017, there was some delay in getting Movant's medical records which further delayed her late claim application. The failure to appreciate the seriousness of her injuries is not an acceptable excuse in this case since, as of November 23, 2015, Movant was aware that there was damage to her popliteal artery possibly the result of the knee surgery which she had undergone (see Matra v State of New York, 52 AD2d 989 [3d Dept 1976] [condition of median barrier unknown until later although facts available earlier - not sufficient excuse]; Flannery v State of New York, 91 Misc 2d 797 [Ct Cl 1977]). Although the Court finds this factor weighs against granting Movant's application, it is but one factor for consideration.

Turning now to the factors of the State's notice of the facts underlying the proposed claim, whether it had an opportunity to investigate the facts, and whether it will suffer prejudice if the application is granted. Movant asserts in her memorandum of law that the State had notice of all of the facts underlying the proposed claim as of November 23, 2015 when the damage to her popliteal artery was uncovered and attributed to her earlier knee replacement surgery. The Court agrees with Movant. Although, the mere existence of medical records does not equate with notice for purposes of a late claim motion, since to find otherwise would be to establish notice for any medical malpractice claim where medical records exist. In this case, the medical records document Movant's repeated complaints, the garnered knowledge from the testing performed that there was damage to her popliteal artery and attributed to her knee surgery, all which should have generated some awareness of a potential medical malpractice claim. Even if the medical records did not place the State on notice, the existence of the records will minimize any prejudice caused by the passage of time and permit an investigation to be done.

The next factor, whether the claim appears to be meritorious, is referred to as the most essential factor. Unlike a party who has timely filed a claim, one seeking permission to file a late claim has the heavier burden of demonstrating that the proposed claim appears to be meritorious (see Nyberg v State of New York, 154 Misc 2d 199 [Ct Cl 1992]). Generally, a proposed claim meets this standard if it is not patently groundless, frivolous, or legally defective, and upon consideration of the entire record there is cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]). Movant attaches her medical records and the redacted affidavit of a doctor licensed in New York State who practices in the area of cardiology and internal medicine.(1) The doctor reviewed Movant's medical records from her treatment at University Hospital, Community Campus and Van Duyn, as well as the records from University Hospital, Downtown Campus. Based upon the review of Movant's records, the doctor states that the symptoms about which Movant complained should have led to a more prompt discovery of the damage to her left popliteal artery and timely treatment. The delay in discovering and treating the damage to her artery departed from good and accepted medical practice, and caused substantial and irreversible damages in that it was a contributory cause of her peripheral artery disease on March 21, 2016. Movant has established that the proposed claim is potentially meritorious. This factor weighs in favor of Movant's application.

The final factor to be considered is whether Movant has any other available remedy. Movant may have individual causes of action against the doctors who performed her surgery.

Upon balancing all of the factors, the Court finds Movant's application should be GRANTED. Movant is directed to sign, verify, file, and serve the proposed claim in accordance with the Court of Claims Act section 11 within 30 days of the date this Decision and Order is filed with the Clerk of the Court. Movant must also pay the filing fee or make a proper application or certification in accordance with Court of Claims Act section 11-a.

April 20, 2018

Syracuse, New York


Judge of the Court of Claims

The Court has considered the following in deciding this motion:

1) Notice of Motion.

2) Redacted affidavit of a Medical Doctor licensed to practice in the State of New York, sworn to November 21, 2017, in support, with exhibits attached thereto.

3) Memorandum of Law in support.

4) Affirmation of Robin C. Zimpel-Fontaine, Esquire, in support, with exhibit attached thereto.

1. It would have been better practice for Movant to submit in camera an unredacted copy of the affidavit of the doctor.