Motion for permission to serve and file a Claim late pursuant to CCA § 10(6) granted.
|Claimant short name:||DENTEL|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||CELLINO LAW, LLP
By: Sareer A. Fazili, Esq.
|Defendant's attorney:||LETITIA JAMES
Attorney General of the State of New York
By: Thomas P. Carafa, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||October 4, 2021|
|See also (multicaptioned case)|
For the reasons set forth below, the application of Movant, Hannah Dentel, to serve and file a late Claim pursuant to Court of Claims Act § 10(6), is granted.
Movant, for the second time, seeks permission to serve and file a late claim. The proposed Claim, attached to the Motion papers as Exhibit A, asserts that, on October 24, 2019, Movant, a student at the State University of New York at Potsdam (hereinafter, "SUNY Potsdam") sought care for her hip from an athletic trainer employed or affiliated with the school. The trainer "advised and applied electrical stimulation to [Movant's] leg, while simultaneously recommending and providing heat to the affected area. The heat and electric stimulation applied to [Movant's] leg caused a severe burn" to the affected area. Movant reported her injury to the trainer. Another trainer advised Movant to wrap it and applied gauze and tape to the affected area (Proposed Claim, ¶ 7). Movant sought treatment and care at St. Lawrence Urgent Care. On October 25, 2019, Movant reported the incident to University Police, who completed an accident report. In the days following, with continued pain, she visited "student health" (id.). Movant was given "ointment and product to change the dressing" (id.). Movant returned home to Wayne County, and sought care with Dr. Derek Bell at the University of Rochester Strong Memorial Hospital Kessler Burn Center. She was diagnosed with third degree burns and underwent two surgeries to repair the burns created and caused by the electrical stimulation treatment (id.).
The proposed Claim further alleges that Defendant, its agents, servants, or employees, acting in the course and scope of their employment, were negligent in the application of the electrical stimulation treatment and other treatments, resulting in permanent injury to Movant's hip and leg (Proposed Claim, ¶¶ 8, 9).
Movant previously moved for the same relief she seeks here. However, at that time, she did not submit a proposed Claim. She submitted a proposed Notice of Intention. In its prior Decision and Order, the Court held that:
[It] cannot consider the submitted Notice of Intention to be a proposed Claim as it does not meet the requirements of a Claim, because the Notice of Intention fails to comply with Court of Claims Act § 11(b) as the Notice of Intention is not properly verified as required by Court of Claims Act § 11(b) and CPLR 3020(a) and (d). Neither Movant nor her counsel signed the Notice of Intention. The Court further notes that the Notice of Intention is very general and conclusory in describing the alleged negligent act of Defendant.
(Dentel v State of New York, UID No. 2020-040-039 [Ct Cl, McCarthy, J., Dec. 1, 2020]).
The Court denied the Motion without prejudice.
Pursuant to Court of Claims Act § 10(6), it is within the Court's discretion to allow the filing of a late claim if the applicable statute of limitations set forth in Article 2 of the CPLR has not expired. Thus, the first issue for determination upon any late claim motion is whether the application is timely. Since the proposed Claim asserts a cause of action for negligence (CPLR § 214, a three-year Statute of Limitations) and/or medical malpractice (CPLR § 214-a, a two and one-half year Statute of Limitations), it appears that the proposed Claim is timely made as Movant asserts that the Claim accrued on October 24, 2019.
Next, in determining whether to grant a motion to file a late claim, Court of Claims Act § 10(6) sets forth six factors that should be considered, although other factors deemed relevant also may be taken into account (Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]). Movant need not satisfy every statutory element (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 ). However, the burden rests with Movant to persuade the Court to grant his or her late claim motion (see Matter of Flannery v State of New York, 91 Misc 2d 797 [Ct Cl 1977]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]).
The first factor to be considered is whether the delay in filing the claim was excusable. Movant asserts that she did not timely file the Claim because of the injuries sustained and the fact that she received medical treatment which included surgery and follow-up appointments. She also allowed for a period of recuperation. She did not consult with counsel until after the 90-day filing period had expired (Affirmation of Sareer A. Fazili, Esq. (hereinafter "Fazili Affirmation") ¶ 20). Counsel further asserts that issues caused by the Covid-19 pandemic led to a complete halt in initiating any new claims for a significant period of time pursuant to orders issued by the Governor and Chief Judge of New York (id.). The excuse for failing to timely file must relate to the initial 90-day period (see Bloom v State of New York, 5 AD2d 930 [3d Dept 1958]). Here, according to the Court's calculations, the 90-day period expired January 22, 2020. However, Movant has submitted neither a physician's affidavit nor hospital records to establish the length of time of her alleged incapacity (Cabral v State of New York, 149 AD2d 453 [2d Dept 1989]; Goldstein v State of New York, 75 AD2d 613 [2d Dept 1980]; Rios v State of New York, 67 AD2d 744 [3d Dept 1979]). Further, ignorance of the law is not an acceptable excuse for failure to file a timely claim (Matter of Robinson v State of New York, 35 AD3d 948, 950 [3d Dept 2006]). In addition, the orders issued by the Governor and the Chief Judge of New York relating to the Covid-19 pandemic did not occur until mid-March 2020, well after the 90-day filing period expired. However, tender of a reasonable excuse for delay in filing a claim is not a precondition to permission to file a late claim such as to constitute a sine qua non for the requested relief (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., supra at 981).
The next three factors to be addressed - whether Defendant had notice of the essential facts constituting the claim, whether Defendant had an opportunity to investigate the circumstances underlying the claim, and whether the failure to file or serve a timely claim or to serve a notice of intention resulted in substantial prejudice to Defendant - are interrelated and will be considered together. Movant asserts that Defendant had notice of the underlying incident as she sought care from SUNY Potsdam healthcare professionals immediately after the incident occurred and, again, the following day. It is further asserted that she reported the incident to the SUNY Potsdam police (Fazili Affirmation, ¶ 22). It is also asserted that Movant communicated with Melissa Proulx, an employee of SUNY Potsdam in the Human Resources Department, about the incident and that an investigation was conducted by Ms. Proulx and/or by others at her direction (id.). Movant asserts that, since Defendant had notice of the essential facts, it had an opportunity to investigate and was not substantially prejudiced by the delay in filing the Claim (id., ¶¶ 23, 24, 28-31).
Defendant does assert lack of notice of the essential facts and lack of opportunity to investigate, and, thus, that Defendant has been prejudiced as so much time has passed since the incident occurred (Affirmation of Thomas P. Carafa, Esq. [hereinafter, "Carafa Affirmation"], ¶ 22). However, the State has failed to establish, by submitting an affidavit from a person with knowledge at SUNY Potsdam, that it did not have notice of the essential facts of the case or an opportunity to investigate those facts. In the absence of such information, the Court finds that Defendant has failed to establish that it will be substantially prejudiced by the delay in filing the Claim. Those factors, therefore, weigh in Movant's favor.
The fifth factor to be considered is whether Movant has another remedy available. It appears that Movant does have at least a partial possible alternate remedy against the athletic trainer allegedly responsible for her injuries.
The sixth, final and perhaps most important factor to be considered is whether the proposed Claim has the appearance of merit, for it would be futile to permit a defective claim to be filed, subject to dismissal, even if other factors tended to favor the request (Ortiz v State of New York, 78 AD3d 1314, 1314 [3d Dept 2010], lv granted 16 NY3d 703 , affd sub nom. Donald v State of New York, 17 NY3d 389 , quoting Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]). It is Movant's burden to show that the claim is not patently groundless, frivolous or legally defective, and, based upon the entire record, including the proposed claim and any affidavits, that there is reasonable cause to believe that a valid cause of action exists. 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 Movant to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit Movant to file a late claim (Matter of Santana v New York State Thruway Auth., supra at 11-12).
In order to maintain an action for injuries sustained while under the care and control of a medical practitioner and/or medical facility, "a party may proceed upon a theory of simple negligence, or upon the more particularized theory of medical malpractice" (Hale v State of New York, 53 AD2d 1025 [4th Dept 1976], appeal denied 40 NY2d 804 ). "The distinction between ordinary negligence and malpractice turns on whether the acts or omissions complained of involve a matter of medical science or art requiring special skills not ordinarily possessed by [laypersons], or whether the conduct complained of can instead be assessed on the basis of the common everyday experience of the trier of the facts" (Miller v Albany Med. Ctr. Hosp., 95 AD2d 977, 978 [3d Dept 1983]; see Twitchell v MacKay, 78 AD2d 125, 127 [4th Dept 1980]).
To the extent the proposed cause of action alleges medical malpractice, the merit of the claim must be patently revealed by medical records or supported by an expert affidavit (see Matter of Robinson v State of New York, supra at 950; Matter of Perez v State of New York, 293 AD2d 918, 919 [3d Dept 2002]; Rosario v State of New York, 8 Misc 3d 1007[A] [Ct Cl 2005]; Vespucci v State of New York, UID No. 2007-038-505 [Ct Cl, DeBow, J., Feb. 16, 2007]; Jackson v State of New York, UID No. 2007-029-001 [Ct Cl, Mignano, J., Jan. 10, 2007]). While Movant has submitted some medical records, she has not submitted an expert affidavit stating that Defendant's actions departed from the accepted standard of care in this matter (see Matter of Robinson v State of New York, supra at 950; Rosario v State of New York, supra). Further, in the absence of an expert affidavit, there is no support for any contention that Defendant committed medical malpractice, or that such alleged malfeasance or nonfeasance caused injury to her (see Schreck v State of New York, 81 AD2d 882 [2d Dept 1981]).
As to the medical negligence cause of action, Movant has provided minimally-sufficient facts to show the potential meritoriousness of a negligence cause of action.
At this stage of the proceeding, it should be noted the Court generally takes as true factual allegations of Movant. Based upon the entire record, including the proposed Claim, the Court finds that the proposed Claim relating to the negligence cause of action asserting negligence in the application of a heat treatment to Movant's hip and wrapping the affected area, has the appearance of merit. Movant need only establish the appearance of merit; she need not prove a prima facie case at this stage of the proceedings.
In accordance with the foregoing, the Court finds that the preponderance of factors considered weigh in Movant's favor as to the negligence cause of action only. The mix of circumstances presented by this case fall well within the remedial purposes of the amendments to the Court of Claims Act enacted in 1976 (L 1976, ch 280), which was designed to vest in the Court of Claims broader discretion than previously existed to permit late filing, indicated a strong concern that litigants with meritorious claims be afforded their day in court (Calzada v State of New York, 121 AD2d 988, 989 [1st Dept 1986]; Plate v State of New York, supra at 1036). Movant has provided ample basis for a favorable exercise of this Court's discretion to grant him leave to file a late claim against the State as set forth above asserting the negligence cause of action. Therefore, within forty-five (45) days of the date of filing of this Decision and Order, Movant shall file with the office of the Clerk of the Court her proposed Claim, only with respect to the negligence cause of action, as set forth above, against the State of New York, and serve a copy of the proposed Claim upon the Attorney General personally or by certified mail, return receipt requested. In serving and filing his Claim, Movant is directed to follow all of the requirements of the Court of Claims Act, including § 11-a, regarding the filing fee, and the Uniform Rules for the Court of Claims.
October 4, 2021
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered on Movant's application for permission to file a late claim:
Notice of Motion, Affirmation,
& Exhibits Attached 1
Affirmation in Opposition 2