New York State Court of Claims

New York State Court of Claims
DIFIORE v. THE STATE OF NEW YORK, # 2018-045-015, Claim No. None, Motion No. M-91554


Motion to file a late claim, medical malpractice claim.

Case information

UID: 2018-045-015
Claimant short name: DIFIORE
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): None
Motion number(s): M-91554
Cross-motion number(s):
Claimant's attorney: Tomao and Marangas
By: Theodora A. Marangas, Esq.
Defendant's attorney: Hon. Eric T. Schneiderman, Attorney General
By: Joseph Tipaldo, Assistant Attorney General
Third-party defendant's attorney:
Signature date: April 12, 2018
City: Hauppauge
Official citation:
Appellate results:
See also (multicaptioned case)


The following papers were read and considered by the Court on this motion: Claimants' Notice of Motion; Claimants' Affirmation with Annexed Exhibits; Defendant's Affirmation in Opposition; and Claimant's Reply Affirmation.

Claimants, Anthony DiFiore and Dianne DiFiore have brought this motion pursuant to Court of Claims Act (CCA) 10 (6) seeking an order granting permission to file a late claim. Defendant, the State of New York opposes the motion.

It is well settled that "[t]he Court of Claims is vested with broad discretion to grant or deny an application for permission to file a late claim" (Matter of Brown v State of New York, 6 AD3d 756, 757 [2004]). In determining whether relief to file a late claim should be granted the Court must take into consideration the factors set forth in Court of Claims Act 10(6) (Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 [1982]). The factors are not necessarily exhaustive, nor is the presence or absence of any particular one controlling (id.). Those factors are whether the delay in filing the claim was excusable; whether the defendant had notice of the essential facts constituting the claim; whether the defendant had an opportunity to investigate; whether the defendant was substantially prejudiced; whether the claim appears to be meritorious and whether the claimant has any other available remedy. A proposed claim to be filed, containing all of the information set forth in CCA 11, shall accompany any late claim application.

Claimant, Anthony DiFiore, alleges that on June 18, 2016 he was negligently treated for a left thumb nerve injury while a patient at Stony Brook University Hospital. The claim of Dianne DiFiore is derivative in nature.

Claimants do not offer any legally acceptable excuse for the delay in filing the claim. However, lack of an acceptable excuse, alone, is not an absolute bar to a late claim application (Matter of Carvalho v State of New York, 176 AD2d 317 [2d Dept 1991]). A reasonable excuse for untimely service is only one of several factors taken into consideration by the Court when considering whether to allow late filing of a claim and is not by itself determinative.

The next three factors, notice, an opportunity to investigate and prejudice are interrelated and as such will be considered together. While it is true that defendant was not put on notice by the mere possession of the hospital records (Bucknor v New York City Health & Hosps. Corp. [Queens Hosp. Ctr.], 44 AD3d 811 [2d Dept 2007]), defendant is not offering any specifics as to how it is or has been substantially prejudiced by the delay in filing of this claim (Barnes v New York City Hous. Auth., 262 AD2d 46 [1st Dept 1999]; Butler v Town of Smithtown, 293 AD2d 696 [2d Dept 2002]). Additionally, in the ordinary and regular course of hospital treatment and record keeping, any pertinent medical records must be preserved for a much longer period of time than the delay here (see 10 NYCRR 405.10[a][4] and 405.10[b][2][iv]). Thus the Court finds that, given the entirety of the circumstances involved in the present action, these factors are found to be in claimants' favor.

The most significant issue to be considered is that of merit. To permit the filing of a legally deficient claim would be an exercise in futility (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]).

In order for a claim to "appear to be meritorious": (1) it must not be patently groundless, frivolous, or legally defective, and (2) the court must find, upon a consideration of the entire record, including the proposed claim and any affidavits or exhibits, that there is reasonable cause to believe that a valid cause of action exists...[T]he court need only determine whether to allow the filing of the claim, leaving the actual merits of the case to be decided in due course. While this standard clearly places a heavier burden on a claimant who has filed late than upon one whose claim is timely, it does not, and should not, require him to definitively establish the merits of his claim, or overcome all legal objections thereto, before the court will permit him to file (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11-12 [Ct Cl 1977]).

In order to establish the appearance of merit in a medical malpractice claim, claimants must set forth that defendant departed from the accepted standard of medical care, and that such a departure was a proximate cause of the injury (Mullally v State of New York, 289 AD2d 308 [2d Dept 2001]). General allegations of medical malpractice that are unsupported by competent evidence establishing the essential elements are insufficient (Torns v Samaritan Hosp., 305 AD2d 965, 966 [3d Dept 2003]). "[E]xpert medical evidence clearly is required to demonstrate that the diagnosis and treatment rendered to claimant by state personnel departed from accepted medical practices and standards" (Matter of Perez v State of New York, 293 AD2d 918, 919 [3d Dept 2002]).

Claimants have set forth through the affirmation of Anne J. Miller, MD, that defendant departed from the accepted standard of medical care, and that such departures were a proximate cause of Anthony DiFiore's injuries. Accordingly, the Court finds that claimants have established, for the purposes of this motion, that the claim is meritorious.

Finally, it appears as though claimants may have a viable action against individual physicians in New York State Supreme Court.

Based upon the foregoing and having considered the statutory factors enumerated in Court of Claims Act 10(6), the Court finds that the factors favor claimants' application. Thus, the Court hereby grants claimants' motion to file a late claim.

Accordingly, within sixty (60) days of the date this decision and order is filed, claimants shall file and serve the proposed claim, together with payment of the appropriate filing fee, pursuant to Court of Claims Act 11 and 11-a.

April 12, 2018

Hauppauge, New York


Judge of the Court of Claims