Opinion
# 2012-018-327 Motion No. M-81738
09-21-2012
RHONDA L. DAVIS, Individually and as Executrix of the Estate of KING S. DAVIS, Sr., Deceased v. STATE OF NEW YORK
Synopsis
Motion to file late claim granted. Case information
UID: 2012-018-327 Claimant(s): RHONDA L. DAVIS, Individually and as Executrix of the Estate of KING S. DAVIS, Sr., Deceased Claimant short name: DAVIS 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-81738 Cross-motion number(s): Judge: DIANE L. FITZPATRICK BOTTAR LEONE, PLLC Claimant's attorney: By: Aaron J. Ryder, Esquire ERIC T. SCHNEIDERMAN Attorney General of the State of New York Defendant's attorney: By: Maureen A. MacPherson, Esquire Assistant Attorney General Third-party defendant's attorney: Signature date: September 21, 2012 City: Syracuse Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Movant brings a motion seeking permission to file a late claim on behalf of the estate of the Decedent in accordance with Court of Claims Act § 10 (6). Movant was issued Letters Testamentary on May 6, 2011. Defendant opposes the motion.
From the submissions on this motion and the proposed claim, Decedent's family took him to the emergency room for increasing weakness, inability to get out of bed or ambulate. Decedent was admitted to University Hospital, Upstate Medical University (hereinafter University Hospital) on December 13, 2009, with "acute o[r] chronic renal failure as well as hypovolemia, generalized weakness and malaise."It is alleged that Decedent, thereafter, developed decubitus ulcers while in the hospital, which were not properly treated and continued to worsen during the course of his hospitalization until discharge on January 5, 2010. At the time of discharge, it is alleged that inadequate discharge orders were made which failed to direct the proper care and treatment of the decubitus ulcers. It is alleged that Decedent suffered conscious pain and suffering and his Executrix has incurred medical expenses for his care and treatment because of the decubitus ulcers.
Movant's second Exhibit D.
A proposed claimant who fails to timely file and serve a claim or serve a notice of intention may be permitted, upon application and in the discretion of the Court, to file a claim which complies with § 11 of the Court of Claims Act, at any time before an action asserting a like claim against a citizen of the State would be barred under the provisions of article two of the CPLR (Court of Claims Act § 10 [6]). The continuous treatment doctrine serves to toll the statute of limitations for a medical malpractice action from the date of the occurrence or wrongdoing until the treatment for the same original condition or complaint has ended (Allende v New York City Health and Hosp. Corp., 90 NY2d 333, 338 [1997]; Borgia v City of New York, 12 NY2d 151, 155 [1962]). This application is timely made within two and one-half years of January 5, 2010, having been served and filed on June 18, 2012 (CPLR 214-a).
To determine whether an application for permission to file a late claim should be granted, consideration must be given to the six factors listed in Court of Claims Act § 10 (6), and any other relevant factors. The presence or absence of any one factor is not determinative (Bay Terrace Cooperative Section IV, Inc., v New York State Employees' Retirement System, Policemen's and Firemen's Retirement System, 55 NY2d 979 [1982]; Ledet v State of New York, 207 AD2d 965 [4th Dept 1994]). Instead, it is a balancing of all of the factors by the Court which may warrant the granting of the application to file and serve a late claim.
The first factor is whether the delay in filing the claim was excusable. It is asserted that Movant did not seek the assistance of an attorney until May 12, 2010, and by that time the 90-day period within which to file and serve a claim in the Court of Claims had already expired. No excuse is offered for the failure to timely file and serve a claim. Movant had Power of Attorney for Decedent and, in any event, could have timely served a notice of intention even without the authority to commence an action (compare Matter of Harris v Board of Educ. Union Springs Cent. School Dist., 73 AD3d 1451 [4th Dept 2010]; Matter of Figueroa v City of New York, 279 App Div 771 [2d Dept 1951]). On June 18, 2010, Movant's counsel served Defendant with a notice of intention. After Decedent died on September 29, 2010, Movant had no authority to commence an action until Letters Testamentary were issued on May 6, 2011. This application was brought over a year thereafter. No valid excuse is presented to explain the failure to timely serve a notice of intention, to file and serve a claim, or to explain the extensive delay in bringing this application. This factor must weigh against granting the application, however, the failure to meet all six factors is not determinative.
Turning to whether the State had notice, an opportunity to investigate the facts underlying the proposed claim, or whether the State would suffer prejudice if the application was granted, these factors, being interrelated, will be considered together. The State was placed on notice of Movant's claim when a Notice of Intention to File a Claim was served upon Defendant on June 18, 2010. Although this Notice of Intention was not served within 90 days of the accrual of the claim and, therefore, did not extend Movant's time for filing a proper claim, it did place the State on notice of Movant's allegations. With this notice only six months after the accrual of the claim and only three months late, Defendant had an opportunity to investigate, and Defendant makes no assertion that it attempted to investigate and was unsuccessful. With notice and an opportunity to investigate, no prejudice will befall Defendant if the Court grants this application. As Movant points out, medical records exist which will identify witnesses and medical providers to aid in Defendant's investigation. These factors weigh in favor of granting the application.
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 Authority, 92 Misc 2d 1, 11 [Ct Cl 1971]). Movant asserts that the basis for the claim is Defendant's alleged medical malpractice. Movant has attached a thorough affidavit from a physician, Board Certified in Internal Medicine, Robert T. Keller, M.D., who is licensed to practice medicine in the State of Texas. He practices general internal medicine and teaches medical students and residents. He asserts that he is familiar with the care and treatment of patients with decubitus ulcers. Dr. Keller has reviewed Decedent's medical records and the admission abstract for Decedent's admission to Rosewood Nursing Home, as well as further admissions to University Hospital, Northwood Nursing Home, and Crouse Hospital. He also reviewed the death certificate. Dr. Keller opines that the failure of the nursing staff to timely advise the attending physicians during Decedent's hospital stay at University Hospital between December 13, 2009 and January 5, 2010, of the condition of his pressure ulcer was a deviation from the standard of care. The treatment provided to Decedent during this time for the decubitus ulcers was insufficient and also deviated from the standard of care, causing the ulcers to be prolonged and progressive, ultimately requiring significant followup care and a diverting colostomy. Dr. Keller substantiates his opinion with reference to facts specific to Decedent's condition and causally describes how the condition was exacerbated (see Schreck v State of New York, 81 AD2d 882 [2d Dept 1981]; Colson v State of New York, 115 Misc 2d 402 [Ct Cl 1982]; Favicchio v State of New York, 144 Misc 2d 212 [Ct Cl 1989]). The medical records and Admission Nursing Assessment for Rosewood Nursing Home were provided with Movant's application. Defendant argues that these records may not be considered on this application because they are uncertified and not in admissible form. Here, there is competent medical evidence to support the merit of Movant's proposed late claim (Matter of Perez v State of New York, 293 AD2d 918 [3d Dept 2002]; Alex v State of New York, UID No. 2011-040-070 [Ct Cl, McCarthy, J., Dec. 2, 2011]; Jones v State of New York, UID 2010-016-045 [Ct Cl, Marin, J., July 7, 2010]). This factor weighs in favor of Movant's application.
The final factor to be considered is whether Movant has any other available remedy. As Defendant points out, and although possibly untimely now, Movant may have had a medical malpractice action directly against the treating physicians.
Upon balancing all of the factors in the Court of Claims Act § 10 (6), this Court GRANTS the motion. Movant is directed to file and serve the proposed claim and pay the required fee or submit the appropriate application in accordance with Court of Claims Act 11-a within 30 days of the date this Decision and Order is filed with the Clerk of this Court. Filing and service of the claim should be in accordance with all applicable statutory requirements and Court rules.
September 21, 2012
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims
The Court has considered the following in deciding this motion:
1) Notice of Motion.
2) Affirmation of Aaron J. Ryder, Esquire, in support, with exhibits attached thereto.
3) Affirmation of Maureen A. MacPherson, Esquire, Assistant Attorney General, in opposition.
4) Reply Affirmation of Aaron J. Ryder, Esquire, in support.