Opinion
# 2014-050-062 Claim No. NONE Motion No. M-85715
12-05-2014
ROBERT MORAN v. THE STATE OF NEW YORK
The Law Offices of Ira C. Podlofsky, PC By: Ira C. Podlofsky, Esq. Hon. Eric T. Schneiderman, NYS Attorney General By: Joseph Tipaldo, Assistant Attorney General
Synopsis
Motion by proposed claimant for leave to file a late claim is granted. The Court has reviewed the proofs and finds based on the proposed claimant's affidavit and affidavit of the proposed claimant's medical expert, that all of the statutory criteria set forth in the governing statute, CCA § 10 (6), have been met by the proposed claimant's submission.
Case information
| UID: | 2014-050-062 |
| Claimant(s): | ROBERT MORAN |
| Claimant short name: | MORAN |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption has been amended, sua sponte, to reflect the only proper defendant, the State of New York. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | NONE |
| Motion number(s): | M-85715 |
| Cross-motion number(s): | |
| Judge: | STEPHEN J. LYNCH |
| Claimant's attorney: | The Law Offices of Ira C. Podlofsky, PC By: Ira C. Podlofsky, Esq. |
| Defendant's attorney: | Hon. Eric T. Schneiderman, NYS Attorney General By: Joseph Tipaldo, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | December 5, 2014 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
This is a motion by the proposed claimant for leave to file a late claim pursuant to Court of Claims Act (CCA) § 10 (6). It is opposed by the State of New York.
On May 7, 2014, the proposed claimant had left-knee replacement surgery Stony Brook University Medical Center (the hospital). The proposed claimant alleges to have sustained extreme permanent scarring to the back of his leg as a result of the surgery. Following a return to the hospital on May 27, 2014, proposed claimant's discharge summary read that he was treated at that time for "eschar" of the lower leg. In support of the application, proposed claimant offers his own affidavit, the affirmation of his attorney and the affidavit of physician Dr. David Mayer who opines that there were "multiple departures from accepted standards of practice" and that such departures were substantial factors in and the proximate cause of the proposed claimant's scarring.
The Court has reviewed the proofs and finds based on the proposed claimant's affidavit sworn to September 14, 2014, and affidavit of the proposed claimant's medical expert Dr. Mayer sworn to September 14, 2014 that all of the statutory criteria set forth in the governing statute, CCA § 10 (6), have been met by the proposed claimant's submission. That is, each of the factors to be considered upon a motion such as this weigh in proposed claimant's favor (see Tucholski v State of New York, 122 AD3d 612, 2014 [2014]). The relatively short delay beyond the statutorily established 90-day period of limitations for a proposed medical malpractice claim (see CCA § 10 [3]; Castollanos v State of New York, 13 Misc 3d 1234 (A) [Ct Cl 2006]) is clearly surmounted in this instance where the section 10 (6) criteria are satisfied.
Based on the foregoing, the motion is granted and the claimant shall have leave to serve and file its proposed claim - in the exact form of the proposed claim attached as exhibit "A" to the affirmation of proposed claimant's counsel dated September 23, 2014 - within 40 days of the date of the filing of this decision and order, with such service and filing to be in accordance with the requirements of the CCA and the Uniform Rules of the Court of Claims.
December 5, 2014
Hauppauge, New York
STEPHEN J. LYNCH
Judge of the Court of Claims
The following papers were read and considered by the Court on the proposed claimant's motion for leave to file a late claim:
1. Notice of Motion, Affirmation with Exhibit A through F.
2. Affirmation in Opposition.