Opinion
# 2016-049-041 Claim No. None Motion No. M-89083
11-17-2016
NATALIE WEBSTER v. THE STATE OF NEW YORK
Phillips & Paolicelli, LLP By: Danielle George, Esq. Eric T. Schneiderman, New York State Attorney General By: Joseph Tipaldo, Assistant Attorney General
Synopsis
The Court granted claimant's application to serve and file a late claim.
Case information
| UID: | 2016-049-041 |
| Claimant(s): | NATALIE WEBSTER |
| Claimant short name: | WEBSTER |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption has been amended, sua sponte, to reflect the only properly named defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | None |
| Motion number(s): | M-89083 |
| Cross-motion number(s): | |
| Judge: | DAVID A. WEINSTEIN |
| Claimant's attorney: | Phillips & Paolicelli, LLP By: Danielle George, Esq. |
| Defendant's attorney: | Eric T. Schneiderman, New York State Attorney General By: Joseph Tipaldo, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | November 17, 2016 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant Natalie Webster moves this Court for permission to serve and file a late claim pursuant to Court of Claims Act § 10(6). The proposed claim seeks monetary damages for injuries sustained by claimant as the result of medical malpractice (Aff. in Supp., Ex. F). Specifically, it is alleged that Webster was scheduled to have a procedure performed at SUNY Downstate Medical Center on August 14, 2015 that involved the drainage of a Bartholin's gland cyst. However, without her prior knowledge or consent during surgery the entire gland was negligently removed.
The application was filed within the relevant statute of limitations, and the Court therefore has jurisdiction to grant relief under section 10(6) upon analysis of the relevant factors contained therein. The factors are whether: the delay in filing the claim was excusable; respondent had notice of the essential facts constituting the claim; respondent had an opportunity to investigate; respondent was substantially prejudiced; the proposed claim appears to be meritorious; and the movant has any other available remedy (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 [1982]).
Claimant's application is supported by an affirmation of counsel, Webster's own affidavit (Aff. in Supp., Ex. A), various medical records (Aff. in Supp., Ex. B, C, D), and a physician's affidavit (Aff. in Supp., Ex. G).
Defendant opposes the application only with respect to named defendants SUNY Downstate Medical Center and SUNY Downstate Medical College, noting that the Court lacks jurisdiction over the named defendants, other than the State of New York. As set forth in footnote 1, the Court has sua sponte amended the caption to remove these defendants.
Otherwise, defendant takes no position with respect the application and thereby does not address any of the section 10(6) factors. The State's failure to do so "entitles the court to presume that they weigh in favor of granting the motion" (Mamedova v City Univ. of N.Y., 13 Misc 3d 1211[A], 2006 NY Slip Op 51775[U] [Ct Cl 2006]; see also Fine v State of New York, 10 Misc 3d 1075[A] 2005 NY Slip Op 52240[U] [Ct Cl 2005] [late claim factors not opposed by the defendant are "presumed to weigh in Claimant's favor"]).
A review of claimant's submissions reveals that the proposed claim has the appearance of merit and that the delay in filing will not present a substantial prejudice to defendant. And while claimant may have an alternate remedy against the individual physician that performed the procedure at issue (see Morell v Balasubramanian, 70 NY2d 297 [1987]), this factor does not militate against granting the application.
Accordingly, it is hereby
ORDERED that motion no. M-89083 is granted, and that within 30 days of the filing of this Decision and Order, claimant shall serve and file a properly verified claim in the form of the proposed claim annexed as exhibit F to her moving papers, entitling it Claim (with the amended caption). In serving and filing the claim, claimant shall comply with all of the requirements of the Court of Claims Act and the Uniform Rules for the Court of Claims, including the payment of a filing fee in accordance with Court of Claims Act § 11-a.
November 17, 2016
Albany, New York
DAVID A. WEINSTEIN
Judge of the Court of Claims Papers considered 1. Claimant's Notice of Motion, Affirmation in Support, and exhibits annexed thereto. 2. Defendant's Affirmation in Partial Opposition.