Opinion
# 2018-045-047 Claim No. None Motion No. M-92545
11-28-2018
FRANK DEMEO and LINDA DEMEO v. THE STATE OF NEW YORK
Rheingold, Giuffra, Ruffo & Plotkin, LLP By: Sherri L. Plotkin, Esq. Hon. Barbara D. Underwood, Attorney General By: Mario E. Simmons, Assistant Attorney General
Synopsis
Claimants' motion to file a late claim, med malp. action did not contain a physician's affidavit. Delay in obtaining medical records is not a reasonable excuse.
Case information
| UID: | 2018-045-047 |
| Claimant(s): | FRANK DEMEO and LINDA DEMEO |
| Claimant short name: | DEMEO |
| 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-92545 |
| Cross-motion number(s): | |
| Judge: | GINA M. LOPEZ-SUMMA |
| Claimant's attorney: | Rheingold, Giuffra, Ruffo & Plotkin, LLP By: Sherri L. Plotkin, Esq. |
| Defendant's attorney: | Hon. Barbara D. Underwood, Attorney General By: Mario E. Simmons, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | November 28, 2018 |
| 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: Claimants' Notice of Motion for Permission to File a Late Notice of Intention to File Claim; Attorney's Affirmation with annexed Exhibits A and B; Defendant's Affirmation in Opposition; and Attorney's Affirmation in Reply with annexed Exhibits A and B.
Claimants, Frank Demeo and Linda Demeo, have brought this motion pursuant to Court of Claims Act (CCA) § 10 (6) seeking an order granting permission to file a late notice of intention to file a claim. However, the Court of Claims Act does not provide for the late filing of a notice of intention to file a claim. Pursuant to Chapter 466, Laws of 1995, effective August 2, 1995, a notice of intention is no longer filed with the Clerk of the Court of Claims. Court of Claims Act § 10 (6) does allow a claimant to seek permission from the Court to file a late claim.
The Court considered the motion as if it were properly titled as a motion seeking late claim relief since the body of claimants' motion refers to Court of Claims Act § 10 (6) and the parties ostensibly treated the motion as one seeking permission to file a late claim. There was also no prejudice to the non-moving party in doing so. Although improperly titled a notice of intention to file a claim, Claimants' Exhibit A was viewed by the parties and the Court as the proposed claim.
Claimant alleges in his proposed claim that from October 3, 2017 through December 29, 2017 he was under the care and treatment of Dr. Daniel Birk and Stony Brook University Hospital (Stony Brook). Claimant alleges that on October 3, 2017, Dr. Birk, as well as other staff and physicians, negligently performed a spinal surgery upon claimant at Stony Brook. Claimant states that a second spinal surgery was negligently performed by Dr. Birk at Stony Brook on October 17, 2017 which included the fusion of discs and the placement of metal hardware around claimant's spine from T-8 through S-1. Claimant contends that he developed a dropped left foot as a result of the second surgery. Claimant contends that he was never informed that a drop foot was a risk of the surgery. Claimant saw a physician's assistant at Dr. Birk's office on December 13, 2017 who recommended an x-ray and MRI. On December 15, 2017, claimant became paralyzed from the waist down and was unable to walk. Claimant went to Mather Hospital where x-rays showed that a screw had broken, breaking off a part of T-8. Claimant was also diagnosed with an infection which was pressing on his spinal cord. The pressure was causing the paralysis from the waist down. Claimant was then transferred by ambulance to Stony Brook where he underwent surgery. Claimant is unsure what was done during this surgical procedure. Claimant remained at Stony Brook from December 15, 2017 through December 29, 2017. He was then transferred to St. Charles Rehabilitation for two weeks to learn how to walk again. Claimant states that he suffered permanent injuries including a left drop foot.
Claimant refers to the claim of Frank Demeo as the claim of Linda Demeo is derivative in nature.
Claimant contends, inter alia, that Dr. Birk, as well as the Stony Brook staff, committed malpractice in the manner in which they performed the spinal fusion surgery and in failing to timely diagnose and treat claimant's post-operative complaints.
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.
Claimants do not offer any legally acceptable excuse for the delay in filing the claim. Claimants failed to demonstrate that their physical conditions prevented them from timely filing their claim (Matter of Magee v State of New York, 54 AD3d 1117 [3d Dept 2008]). It is also well established 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]). Additionally, counsel's failure to timely obtain medical records amounts to law office failure which is not a reasonable excuse (Decker v State of New York, 164 AD3d 650 [2d Dept 2018]; Casey v State of New York, 161 AD3d 720 [2d Dept 2018]).
The next three factors, notice, an opportunity to investigate and prejudice, are interrelated and as such will be considered together. Claimants have failed to demonstrate that defendant had timely notice of the essential facts constituting their claim by virtue of Stony Brook's possession of the hospital records relating to claimant's care (Decker v State of New York, 164 AD3d 650 [2d Dept 2018]). There was however a minimal delay in the filing of this motion after the 90 day statutory time period expired. Thus, witnesses' memories of the facts are still fresh. Additionally, 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]). Thus the Court finds that, given the entirety of the circumstances involved in the present action, these factors are found to be in claimants' favor.
It is unclear at this juncture whether claimants have another remedy available to them in Supreme Court.
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, claimants 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 (Novick v South Nassau Communities Hosp., 136 AD3d 999 [2d Dept 2016]; 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]).
Claimants have 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 (Decker v State of New York, 164 AD3d 650 [2d Dept 2018]). Similarly, claimants failed to demonstrate a potentially meritorious cause of action based on a lack of informed consent (Kealos v State of New York, 150 AD3d 1211 [2d Dept 2017]; Dyckes v Stabile, 153 AD3d 783 [2d Dept 2017]). Further, claimants failed to demonstrate that the allegation of negligent hiring is meritorious (Decker v State of New York, 164 AD3d 650 [2d Dept 2018]). Accordingly, the Court finds that claimants have 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), claimants' motion is denied.
November 28, 2018
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims