Opinion
# 2015-049-047 Claim No. None Motion No. M-86894
08-19-2015
AUNDRE BURKE v. THE STATE OF NEW YORK
North & Deutsch, LLP By: Steven E. North, Esq. Eric T. Schneiderman, New York State Attorney General By: Joseph Tipaldo, Assistant Attorney General
Synopsis
The Court granted the motion for late claim relief.
Case information
| UID: | 2015-049-047 |
| Claimant(s): | AUNDRE BURKE |
| Claimant short name: | BURKE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | None |
| Motion number(s): | M-86894 |
| Cross-motion number(s): | |
| Judge: | DAVID A. WEINSTEIN |
| Claimant's attorney: | North & Deutsch, LLP By: Steven E. North, 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: | August 19, 2015 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
In the motion now before me, Aundre Burke moves this Court for permission to serve and file a late claim pursuant to Court of Claims Act § 10(6). The proposed claim (entitled "Notice of Claim") names the State of New York ("the State" or "respondent") seeks monetary damages for injuries sustained at State University of New York Downstate Medical Center ("Downstate"), during the course of Burke's treatment on and between January 26 and February 5, 2015. The proposed claim alleges causes of action for lack of informed consent and medical malpractice. Burke also seeks an order directing Downstate to promptly produce, at his expense, a complete copy of all his medical records and imaging studies.
Burke's request to have the annexed "Notice of Claim" deemed timely filed and served nunc pro tunc is not available in the Court of Claims (see Court of Claims Act § 11[a] [requiring service of a claim upon the Attorney General be made personally, or by certified mail, return receipt requested]).
The application was filed within the relevant statute of limitations, and the Court therefore has jurisdiction to grant relief under section 10(6). In determining whether such relief is appropriate, the Court must consider the factors listed in the statute (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 [1982]). Those 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.
Movant's application is supported by an Affirmation by counsel, an Affirmation of Merit by Ruth Spector, M.D., a portion of Burke's Downstate medical records, and Burke's own Affidavit in Support.
Burke attests that while a patient at Downstate, he suffered a series of strokes that have left him substantially impaired. He expresses the view that if proper and timely medical care and treatment had been rendered by Downstate, the strokes could have been prevented or made less severe. He states that his delay in bringing legal action was occasioned by his physical and emotional condition and by his ongoing treatment and rehabilitation. Burke adds that he requested his complete medical chart from Downstate, and only received 27 pages of medical records.
Doctor Spector opines that, based on her review of the medical records with which she was provided, the claim "is not frivolous and is not patently groundless" and "[t]here is reasonable cause to believe . . . that a valid cause of action exists." Spector notes that she was unable to review the complete medical records, and therefore is unable to state with a reasonable degree of certainty that there were departures from acceptable practices by Downstate.
By affirmation of an assistant attorney general, respondent takes no position with respect to movant's application to file a late claim. The State, however, takes exception to Burke's claim that Downstate contributed to the delay of filing a timely claim by allegedly failing to respond to requests for medical records. Respondent asserts that Burke did not make an appropriate request to the hospital for the records until June 1, 2015, as evidenced by Downstate Authorization Form for Burke's medical records attached as exhibit 7 to movant's papers.
Respondent's failure to address the section 10(6) factors "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"]). In this case, this presumption is strengthened by movant's submission of a physician's affirmation that establishes the appearance of merit for purposes of this motion. Moreover, given the brief delay between the running of the 90-day statutory time period for filing and serving a claim, and the making of this application, respondent apparently would not be substantially prejudiced. Based on the foregoing, and in the absence of any other factor which would warrant a different result, the motion for permission to serve and file a late claim is granted.
With respect to the application for an order directing the State to provide Burke a copy of his medical records, there is no apparent basis for the Court to issue such an order at this stage of the proceeding, before the claim has been filed. Movant can avail himself of the disclosure devises provided for by the CPLR once the claim is commenced. To the extent the State improperly delays its response or fails to provide a complete set of records, the Court will address it at the preliminary conference.
Accordingly, it is hereby
ORDERED that motion no. M-86894 is granted to the extent it seeks late claim relief pursuant to section 10(6) of the Court of Claims Act, and that within 30 days of the filing of this Decision and Order, movant shall serve and file a properly verified claim in the form of the proposed claim annexed as exhibit 1 to his moving papers, entitling it Claim. In serving and filing the claim, movant 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; and it is further
ORDERED that Burke's application for an order directing the State to provide a copy of his medical records is denied without prejudice.
August 19, 2015
Albany, New York
DAVID A. WEINSTEIN
Judge of the Court of Claims Papers Considered: 1. Movant's Notice of Motion to File Late Notice of Claim, Affirmation in support, and annexed exhibits. 2. Respondent's Affirmation in Opposition.