Movant's motion for permission to late file a claim is granted. Movant established that the majority of the statutory factors weigh in favor of granting late claim relief.
|Claimant(s):||In the Matter of Application of MONICA SCHMIDT, as Adminstratrix of the Estate of TIMOTHY C. ORLOWSKI|
|Claimant short name:||SCHMIDT|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK, WESTERN NEW YORK DEVELOPMENTAL DISABILITY SERVICES OFFICE; SOUTH CHAPEL IRA|
|Footnote (defendant name) :|
|Judge:||J. DAVID SAMPSON|
|Claimant's attorney:||BROWN CHIARI, LLP
BY: Theresa M. Walsh, Esq.
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
BY: Wendy E. Morcio, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||August 20, 2019|
|See also (multicaptioned case)|
Movant Monica Schmidt, as Administratrix of the Estate of Timothy C. Orlowski, moves the Court for permission to file a late claim pursuant to Court of Claims Act § 10 (6). Defendant opposes the motion.
According to the proposed claim (Movant's Exhibit A), the defendants failed to provide adequate medical care to Timothy C. Orlowski between April 20, 2017 and April 24, 2017, while Mr. Orlowski, a mentally disabled adult, was a resident of the South Chapel IRA group home. Movant Monica Schmidt was named administratrix of the estate of her son, Timothy C. Orlowski, on April 9, 2019. Movant filed claim no. 132963 for wrongful death and this motion for permission to file a late claim for personal injuries on April 22, 2019.
A motion for permission to file and serve a late claim must be brought "before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules" (Court of Claims Act § 10 ). A negligence action against a private citizen would have to be commenced within three years of accrual of the claim (CPLR 214), while an action based on medical malpractice must be brought within two years and six months of accrual (CPLR 214-a). Accordingly, a motion for permission to late file a negligence claim must be brought within three years of accrual of the negligence and a motion to late file a claim based on medical malpractice must be brought within two years and six months of accrual of the malpractice. Movant filed this motion to late file a claim on April 22, 2019. The latest possible accrual date would be April 26, 2017, the date of Mr. Orlowski's death. Thus, the present motion is timely whether based on negligence or on medical malpractice.
The Court of Claims is vested with broad discretion to grant or deny permission to late file a claim (Matter of Gonzalez v State of New York, 299 AD2d 675 [3d Dept 2002]). In determining whether to grant permission to late file a claim, the Court must consider, among other factors, "whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the [movant] has any other available remedy" (Court of Claims Act § 10 ). The enumerated statutory factors are not exhaustive and the presence or absence of any one factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 ).
The first factor to be considered by the Court is whether the delay in filing the claim was excusable. Defendant argues that the delay was not excusable as Mr. Orlowski's mental capacity ceased upon his death more than two years ago and that movant's delay in filing letters of administration should not be considered as a reasonable excuse for the delay in filing a claim. The lack of an excusable delay, however, is only one of the factors to be considered.
The next three factors of notice, opportunity to investigate and prejudice are intertwined and may be considered together (Brewer v State of New York, 176 Misc 2d 337 [Ct Cl, 1998]). Movant's counsel alleges that defendant had notice of the essential facts and an opportunity to investigate as the Western New York Developmental Disability Service Office (WNYDDSO) was required to investigate the circumstances relating to the death of Mr. Orlowski (see Movant's Exhibit E). Defendants argue that they will be prejudiced by the two year delay in commencing this claim. The fact that defendants were required to timely investigate the death eliminates the likelihood of prejudice. As such, these three factors weigh in favor of movant's motion.
The most important factor to consider is merit as it would be futile to permit a claim to be filed which was subject to dismissal (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]). It is Movant's burden to show that the proposed claim is not patently groundless, frivolous or legally defective and that there is a reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc2d 1 ). While this standard places a heavier burden upon a party who has filed late, this standard does not require movant to establish the merit of his claim or to overcome all legal objections before the Court will permit the filing of a late claim (Id. at 11-12). Here, movant has provided copies of the records of TLC Lakeshore Hospital (Lakeshore Hospital) and provided an affidavit of Kathleen Murphy Villafranca, R.N. (Movant's Exhibit D). Based on the evidence provided, this Court cannot conclude that the proposed claim is groundless, frivolous or legally defective. Rather, movant has established that the proposed claim has the appearance of merit.
Another factor to consider is whether movant has another remedy. In reviewing the underlying facts, it appears as if movant may have a cause of action against Lakeshore Hospital. This factor weighs against movant's motion.
The Court concludes that the majority of the statutory factors weigh in favor of granting movant's motion for late claim relief. Accordingly, movant's motion no. M-93887 is granted and movant is directed to file and serve the proposed claim in conformity with the requirements of Court of Claims Act §§ 10, 11 and 11-a within sixty (60) days of the filing of this Decision and Order.
August 20, 2019
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 Theresa M. Walsh, Esq. sworn to April 22, 2019, with annexed Exhibits A-E;
2. Opposing affidavit of Assistant Attorney General Wendy E. Morcio sworn to June 5, 2019; and
3. Reply affidavit of Theresa M. Walsh, Esq. sworn to June 11, 2019.