Motion to file a late notice of intention. Any interested party including proposed administrator can serve notice of intention to file claim.
|Claimant(s):||ARLENE LAWSON, individually and as the Administrator of the Estate of KENNETH J. LAWSON|
|Claimant short name:||LAWSON|
|Footnote (claimant name) :||Arlene Lawson was issued letters of limited administration by the Surrogate's Court of the County of Suffolk on April 23, 2018. Accordingly, the Court, sua sponte, amended the caption to accurately reflect her current status.|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||GINA M. LOPEZ-SUMMA|
|Claimant's attorney:||Tantleff & Kreinces, LLP
By: Matthew R. Kreinces, Esq.
|Defendant's attorney:||Hon. Barbara D. Underwood, Attorney General
By: Ross N. Herman, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 14, 2018|
|See also (multicaptioned case)|
The following papers were read and considered by the Court on this motion: Claimants' Petition with annexed Exhibits A-D; Defendant's Affirmation in opposition with annexed Exhibits 1-3; Claimants' Supplemental Affirmation with annexed Exhibits A-B; Claimants' correspondence dated May 17, 2018; and Defendant's correspondence dated May 23, 2018.
Claimants, Arlene Lawson, individually and as the Administrator of the Estate of Kenneth J. Lawson, have brought this motion seeking an order pursuant to Court of Claims Act § 10 (6) granting permission to file a late notice of intention to file a claim. However, the Court of Claims Act does not provide for the late filing of a notice of intention to file a claim. Pursuant to Chapter 466, Laws of 1995, effective August 2, 1995, a notice of intention is no longer filed with the Clerk of the Court of Claims. Court of Claims Act § 10 (6) does allow a claimant to seek permission from the Court to file a late claim(3) .
Claimants allege that decedent, Kenneth J. Lawson, presented to Stony Brook University Hospital beginning on April 4, 2017 and continued with treatment up until his death on November 17, 2017. Claimants state that they are putting forth claims sounding in wrongful death, medical malpractice and lack of informed consent. It is alleged that decedent sustained conscious pain and suffering for approximately eight months while under the care of defendant. The claim of Arlene Lawson is derivative in nature.
In claimants' supplemental affidavit the Court was apprised of the fact that Arlene Lawson was issued letters of limited administration by the Surrogate's Court of the County of Suffolk on April 23, 2018. Prior to Ms. Lawson's appointment, claimants personally served a notice of intention to file a claim upon the Office of Attorney General on March 2, 2018. On April 24, 2018 claimants served a second notice of intention to file a claim upon the Office of the Attorney General by personal service.
Court of Claims Act § 10 (2) provides that:
"[a] claim by an executor or administrator of a decedent who left him or her surviving a husband, wife or next of kin, for damages for a wrongful act, neglect or default, on the part of the state by which the decedent's death was caused, shall be filed and served upon the attorney general within ninety days after the appointment of such executor or administrator, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after the death of the decedent. In any event such claim shall be filed and served upon the attorney general within two years after the death of the decedent."
To the extent claimants are asserting a claim for wrongful death in their second notice of intention to file a claim it was served within ninety days after the appointment of the administrator pursuant to Court of Claims Act § 10 (2). Accordingly, the statute permits claimants to file and serve upon the attorney general a claim for wrongful death within two years after the death of the decedent. Thus, the portion of the motion seeking late claim relief for the wrongful death cause of action is denied as unnecessary.
Claimants' remaining causes of action sounding in medical malpractice and lack of informed consent are governed by Court of Claims Act § 10 (3) which provides that:
"[a] claim to recover damages for injuries to property or for personal injuries caused by the negligence or unintentional tort of an officer or employee of the state while acting as such officer or employee, shall be filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after the accrual of such claim."
The Court of Appeals has long held that "[b]ecause suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed" (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 ). Accordingly, a claimant who has not met the literal requirements of the Court of Claims Act has not properly commenced his action (Lichtenstein v State of New York, 93 NY2d 911, 913 ). The failure of a claimant to strictly comply with Court of Claims Act § 10 (3) is a jurisdictional defect compelling dismissal of a claim (Kiesow v State of New York, 161 AD3d 1060 [2d Dept 2018]). Claimants failed to either serve a notice of intention to file a claim or file and serve a claim within ninety days of the accrual of their claims sounding in medical malpractice and lack of informed consent.
Court of Claims Act § 10 (6) permits a claimant to seek an order from the Court granting permission to file a late claim. 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 ). 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 ). 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.
Claimants do not offer any legally acceptable excuse for the delay in filing the claim. A claimant need not wait for the appointment of an administrator to serve a notice of intention as notice may be given by "any interested party" (Matter of Dolce v State of New York, 152 AD3d 515, 516 [2d Dept 2017]; DeFilippis v State of New York, 157 AD2d 826, 827-828 [2d Dept 1990]; see Tooks v State of New York, 40 AD3d 1347, 1348 [3d Dept 2007]). Ignorance of the law is not an acceptable excuse for the delay in filing a claim (Borawski v State of New York, 128 AD3d 628 [2d Dept 2015]; Olsen v State of New York, 45 AD3d 824 [2d Dept 2007]).
The next three factors, notice, an opportunity to investigate and prejudice are interrelated and as such will be considered together. It appears as though an internal review of decedent's care was conducted by Stony Brook University Hospital prior to November 30, 2017 (Cl Exh D). Decedent's medical records were reviewed and interviews with his healthcare team were conducted to determine whether appropriate care was provided based on decedent's medical condition and clinical presentation. Additionally, 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]). 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 failed to demonstrate a potentially meritorious cause of action based on their allegations of medical malpractice, since they failed to provide an affidavit of merit from a physician (Decker v State of New York, 2018 WL 3863317 [2d Dept 2018]). The proposed claim also does not state with any specificity which occurrences during decedent's 7-month stay at the hospital are the causes of action based upon. Additionally, the proposed claim fails to comply with Court of Claims Act § 11 (b) since it does not provide the date when decedent first arrived at the hospital.
Similarly, claimants failed to demonstrate a potentially meritorious cause of action based on a lack of informed consent (Kealos v State of New York, 150 AD3d 1211 [2d Dept 2017]; Dyckes v Stabile, 153 AD3d 783 [2d Dept 2017]).
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), claimants' motion is denied.
September 14, 2018
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims
3. The Court considered the motion as if it were properly titled as a motion seeking late claim relief since the body of claimants' motion refers to Court of Claims Act§ 10 (6) and the parties ostensibly treated the motion as one seeking permission to file a late claim. There was also no prejudice to the non-moving party in doing so. Claimants' Exhibit C is identical to claimants' Exhibit B in the supplemental affirmation and was viewed by the parties as the proposed claim.