Opinion
# 2016-045-003 Claim No. None Motion No. M-87094
03-10-2016
DAWN CANDITO v. THE STATE OF NEW YORK
Arthur V. Graseck, Jr., Esq. Hon. Eric T. Schneiderman, Attorney General By: Joseph Tipaldo, Assistant Attorney General
Synopsis
Claimant's motion to file a late claim, med malp. action did not contain a physician's report.
Case information
| UID: | 2016-045-003 |
| Claimant(s): | DAWN CANDITO |
| Claimant short name: | CANDITO |
| 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-87094 |
| Cross-motion number(s): | |
| Judge: | GINA M. LOPEZ-SUMMA |
| Claimant's attorney: | Arthur V. Graseck, Jr., Esq. |
| Defendant's attorney: | Hon. Eric T. Schneiderman, Attorney General By: Joseph Tipaldo, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | March 10, 2016 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read and considered by the Court on this motion: Claimant's Notice of Motion for Leave to Serve a Late Notice of Intention to File a Claim, Claimant's Affidavit, Claimant's Notice of Intention with annexed documents, Defendant's Affirmation in Opposition, Claimant's Amended Notice of Motion for Leave to Serve and File a Late Claim, Affidavit of Frank Candito with annexed documents, Defendant's Affirmation in Opposition to Claimant's Amended Motion with annexed Exhibit A and Claimant's Reply Affirmation with annexed document.
Claimant, Dawn Candito, originally filed a motion seeking an order granting permission to serve a late notice of intention to file a claim. In its opposition defendant, the State of New York, correctly pointed out that the Court of Claims Act does not authorize the service of a late notice of intention. In response claimant then filed an amended motion wherein she seeks an order granting permission to serve and file a late claim.
At the outset the Court notes that Court of Claims Act § 10 (6) provides the Court with authority to permit the filing of a late claim only. There is nothing within the Court of Claims Act which confers upon the Court the power to permit the service of a late notice of intention to file a claim (Holmes v State of N.Y., Roswell Park Cancer Inst. Corp., 5 Misc 3d 446 [Ct Cl 2004]; Harter v State of New York, UID No. 2006-009-067 [Ct Cl, Midey, J., Nov. 28, 2006]).
Claimant alleges that on November 13, 2014 she went to the Stony Brook University Medical Center (Stony Brook) for the treatment of a dog bite she sustained. On November 14, 2014 claimant's left hand was stitched by medical personnel at Stony Brook. On November 15, 2014 she returned to Stony Brook and complained of serious distress related to the medical treatment she had previously received at the hospital. She states that in response to her complaints she was over-medicated which resulted in her being unable to function in a normal manner and that she acted irrationally. She alleges that in response to her irrational conduct she was falsely arrested. She also alleges that her medical treatment for the dog bite wound was negligent and in violation of well established medical procedure.
It is well settled that "[t]he Court of Claims is vested with broad discretion to grant or deny an application for permission to file a late claim" (Matter of Brown v State of New York, 6 AD3d 756, 757 [3d Dept 2004]). In determining whether relief to file a late claim should be granted the Court must take into consideration the factors set forth in Court of Claims Act § 10 (6) (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 [1982]). The factors are not necessarily exhaustive, nor is the presence or absence of any particular one controlling (id.). Those factors are whether the delay in filing the claim was excusable; whether the defendant had notice of the essential facts constituting the claim; whether the defendant had an opportunity to investigate; whether the defendant was substantially prejudiced; whether the claim appears to be meritorious; and whether the claimant has any other available remedy. A proposed claim to be filed, containing all of the information set forth in CCA § 11, shall accompany any late claim application.
Claimant does not offer any legally acceptable excuse for the delay in filing the claim. Claimant merely states that she did not realize that she was required to file a claim until she came into contact with an attorney on July 13, 2015. It is well settled that ignorance of the law is not an acceptable excuse for the delay in filing a claim (Borawski v State of New York, 128 AD3d 628 [2d Dept 2015]; Olsen v State of New York, 45 AD3d 824 [2d Dept 2007]).
The next three factors, notice, an opportunity to investigate and prejudice, are interrelated and as such will be considered together. While it is true that defendant was not put on notice by the mere possession of the hospital records (Bucknor v New York City Health & Hosps. Corp. [Queens Hosp. Ctr.], 44 AD3d 811 [2d Dept 2007]), defendant is not offering any specifics as to how it is or has been substantially prejudiced by the delay in filing of this claim (Barnes v New York City Hous. Auth., 262 AD2d 46 [1st Dept 1999]; Butler v Town of Smithtown, 293 AD2d 696 [2d Dept 2002]). Additionally, in the ordinary and regular course of hospital treatment and record keeping, any pertinent medical records must be preserved for a much longer period of time than the delay here (see 10 NYCRR §§ 405.10 [a] [4] and 405.10 [b] [2] [iv]; Madkins v State of New York, 82 AD3d 1174 [2d Dept 2011]). Thus the Court finds that, given the entirety of the circumstances involved in the present action, these factors are found to be in claimant's favor. It also appears as though claimant does not have another viable action.
The most significant issue to be considered is that of merit. To permit the filing of a legally deficient claim would be an exercise in futility (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]).
In order to establish the appearance of merit in a medical malpractice claim, claimant must set forth that defendant departed from the accepted standard of medical care, and that such a departure was a proximate cause of the injury (Mullally v State of New York, 289 AD2d 308 [2d Dept 2001]). General allegations of medical malpractice that are unsupported by competent evidence establishing the essential elements are insufficient (Torns v Samaritan Hosp., 305 AD2d 965, 966 [3d Dept 2003]). "[E]xpert medical evidence clearly is required to demonstrate that the diagnosis and treatment rendered to claimant by state personnel departed from accepted medical practices and standards" (Matter of Perez v State of New York, 293 AD2d 918, 919 [3d Dept 2002]).
Claimant has failed to set forth through a physician's affidavit that defendant departed from the accepted standard of medical care, and that such departure was a proximate cause of claimant's injuries. Additionally, claimant's discharge instructions from Stony Brook do not support her allegations of medical malpractice rather they state that wound closure with stitches may be used in certain cases.
Further, to the extent claimant is seeking to bring a separate cause of action for false arrest, the Court finds that claimant has failed to establish that such a claim has merit. The elements of a false arrest cause of action are: (1) the defendant intended to confine claimant; (2) claimant was conscious of the confinement; (3) claimant did not consent to the confinement; and (4) the confinement was not otherwise privileged (Broughton v State of New York, 37 NY2d 451 [1975], cert. denied sub nom. Schanbarger v Kellogg, 423 US 929 [1975]). Claimant admits that she acted irrationally due to over-medication which caused her arrest. Frank Candito, claimant's spouse, states that claimant's arrest was based on her alleged stealing of Stony Brook property. Mr. Candito does not deny claimant's conduct which led to her arrest but attributes it to the administration of "very strong drugs" at Stony Brook. Lastly, to the extent claimant is seeking damages from her detainment attributable to over-medication it would be subsumed in her medical malpractice claim.
Accordingly, the Court finds that claimant has failed to establish that the claim is meritorious.
Therefore, based upon the foregoing and having considered the statutory factors enumerated in Court of Claims Act § 10 (6), claimant's motion is denied.
March 10, 2016
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims