Opinion
# 2011-032-035 Motion No. M-80120
12-06-2011
HEARNS v. THE STATE OF NEW YORK
Synopsis Case information
UID: 2011-032-035 Claimant(s): ANTONIO S. HEARNS Claimant short name: HEARNS 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-80120 Cross-motion number(s): Judge: JUDITH A. HARD Schneider, Kaufman & Sherman, P.C. Claimant's attorney: By: Howard B. Sherman, Esq. Hon. Eric T. Schneiderman, NYS Attorney General Defendant's attorney: By: Belinda A. Wagner, Assistant Attorney General, Of Counsel Third-party defendant's attorney: Signature date: December 6, 2011 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Antonio S. Hearns (movant) moves this Court for permission to file and serve a late claim. Defendant opposes the motion on the basis that the proposed claim has no merit. The Court disagrees and for the reasons set forth below, grants movant's motion.
The proposed claim alleges medical malpractice. Specifically, it alleges that defendant failed to properly diagnose and treat him after he injured his ankle at Upstate Correctional Facility on October 29, 2009, and that said failure has resulted in permanent injury.
LAW
The Court of Claims is vested with broad discretion to grant or deny an application for permission to file a late claim (Matter of Gonzalez v State of New York, 299 AD2d 675 [3d Dept 2002]). In making a determination to grant or deny such an application, the Court must determine whether the claim would be timely under Article 2 of the CPLR and then consider certain statutory factors (Court of Claims Act § 10[6]). These factors are: (1) whether the delay in filing the claim was excusable; (2) whether the state had notice of the essential facts constituting the claim; (3) whether the state had an opportunity to investigate the circumstances underlying the claim; (4) whether the state was substantially prejudiced; (5) whether the claimant has any other available remedy; and (6) whether the claim appears to be meritorious (Court of Claims Act § 10[6]). The presence or absence of any one of said factors is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979 [1982]). However, the last factor is the most decisive inasmuch as it is futile to proceed with a meritless claim even if the other factors support the granting of the claimant's application (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]; Prusack v State of New York, 117 AD2d 729 [2d Dept 1986]).
ANALYSIS
In the present case, movant alleges medical malpractice against defendant. Causes of action for medical malpractice have a Statute of Limitations of two years and six months (CPLR § 214-a). As the accrual date alleged herein is October 29, 2009, his claim would be timely under Article 2 of the CPLR. Accordingly, the Court must now consider the statutory factors set forth in Court of Claims Act § 10 (6).
The first factor to consider is whether the delay in filing and serving the claim was excusable. Movant alleges that he was unaware that malpractice was committed. However, it is well settled that ignorance alone is not a sufficient reason for the delay, a fact which movant concedes. Accordingly, this factor weighs against the granting of the movant's motion.
The three factors of notice, opportunity to investigate and prejudice are all intertwined and may be considered together. Movant alleges, and defendant does not dispute, that all of the subject ambulatory health records were generated by the defendant, and that defendant therefore had notice of the essential facts. Movant further argues that because defendant has all of the records pertaining to the treatment and diagnosis of movant's condition, defendant will have more than ample opportunity to investigate and that defendant is not prejudiced, which defendant concedes. Accordingly, these factors weigh in favor of granting the movant's motion.
Movant alleges that he does not have another adequate available remedy and defendant has not argued to the contrary. Accordingly, this factor weighs in favor of granting movant's motion.
The final factor for the Court to consider is whether the claim appears to be meritorious. In order to establish a meritorious cause of action, movant need not demonstrate a likelihood that he will prevail on his claim; he need only show that the proposed claim is not patently groundless, frivolous, or legally defective (see Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]. In addition, the Court must find, upon a consideration of the entire record, including the proposed claim and any affidavits or exhibits, that there is reasonable cause to believe that a valid cause of action exists (id.). While there is a heavier burden on a movant who is seeking to file late than upon a claimant whose claim is timely, movant is not required to definitively establish the merits of his claim or overcome all legal objections thereto (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]).
In support of his motion, movant annexes the affirmation of Leonard R. Harrison, M.D., a Board Certified orthopedic surgeon, who states that he reviewed the records and MRI of movant following his injury and concludes that defendant departed from accepted standards of medical care in the treatment of movant. Dr. Harrison states that the only accepted methods of treatment for movant's condition are surgery or immobilization in a cast for 2-3 months with the foot in the equinus position, and that as a result of neither being done, movant has sustained permanent injury.
In opposition, defendant argues that movant's rendition of the events is not complete and that there are substantial gaps of various treatments provided, including physical therapy. Defendant argues that because movant's expert has not actually examined movant nor has he reviewed more recent records of treatment to movant, that he has an incomplete understanding of movant's injury or condition, such that the Court cannot conclude that the proposed claim has merit. The Court disagrees.
Movant is not required to definitively establish the merits of his claim. He must merely show that there is reasonable cause to believe that a valid cause of action exists. The Court concludes that movant has done so. Accordingly, this factor weighs in favor of granting movant's motion.
Having reviewed movant's submissions, and weighed and considered all of the factors set forth under Court of Claims Act §10(6), the Court exercises its discretion and hereby allows movant to serve and file a late claim against defendant. Movant shall, within forty-five (45) days of the date of filing of this Decision and Order, file his proposed claim with the Clerk of the Court and serve a copy of said proposed claim upon the Attorney General by personal service or certified mail, return receipt requested. In serving and filing the claim, movant is directed to follow all of the requirements of the Court of Claims Act, including Section 11-a, regarding the filing fee, and the Uniform Rules for the Court of Claims.
December 6, 2011
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
Papers Considered:
1. Notice of Motion, dated July 13, 2011; Affirmation in Support, affirmed by Howard B. Sherman, Esq., on July 13, 2011; and Physician's Affirmation, affirmed by Leonard R. Harrison, on July 1, 2011, with Exhibits.
2. Affirmation in Opposition of Belinda A. Wagner, AAG, dated August 8, 2011, with Exhibit.
3. Reply Affirmation of Howard B. Sherman, Esq., affirmed August 15, 2011.