Opinion
# 2020-045-015 Claim No. None Motion No. M-94347
05-04-2020
VICTORIA POLIAKOVA, PRO SE, AS THE ADMINISTRATOR OF THE ESTATE OF ANNA ROZET A/K/A ANNA POLIAKOVA v. THE STATE OF NEW YORK
Victoria Poliakova, Pro Se Hon. Letitia James, Attorney General By: Mario E. Simmons, Assistant Attorney General
Synopsis
Pro se claimant's motion to file a late notice of intention to file a claim.
Case information
| UID: | 2020-045-015 |
| Claimant(s): | VICTORIA POLIAKOVA, PRO SE, AS THE ADMINISTRATOR OF THE ESTATE OF ANNA ROZET A/K/A ANNA POLIAKOVA |
| Claimant short name: | POLIAKOVA |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The Court has amended the caption, sua sponte, to reflect the State of New York as the proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | None |
| Motion number(s): | M-94347 |
| Cross-motion number(s): | |
| Judge: | GINA M. LOPEZ-SUMMA |
| Claimant's attorney: | Victoria Poliakova, Pro Se |
| Defendant's attorney: | Hon. Letitia James, Attorney General By: Mario E. Simmons, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 4, 2020 |
| 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; Claimant's Affidavit in Support with annexed Exhibits A-C; and Defendant's Affirmation in Opposition.
Claimant, Victoria Poliakova, pro se, as the Administrator of the Estate of Anna Rozet a/k/a Anna Poliakova, has brought this motion seeking an order pursuant to Court of Claims Act § 10 (6) granting permission to file a late "notice of claim." The Court of Claims Act does not provide for the late filing of a notice of claim, however it 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 claimant's 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.
Claimant alleges that decedent, Anna Rozet, was a patient at Stony Brook University Hospital and continued with treatment at the hospital during the period of March 24, 2018 through her death on April 15, 2018. Claimant states that she is only seeking to pursue a claim for medical malpractice and lack of informed consent since the wrongful death claim is timely under Court of Claims Act § 10 (2). It is alleged that decedent sustained conscious pain and suffering while under the care of defendant.
Claimant's causes of action sounding in medical malpractice and lack of informed consent are governed by Court of Claims Act § 10 (3) which provides that:
"[a] claim to recover damages for injuries to property or for personal injuries caused by the negligence or unintentional tort of an officer or employee of the state while acting as such officer or employee, shall be filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after the accrual of such claim."
The Court of Appeals has long held that "[b]ecause suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed" (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]). Accordingly, a claimant who has not met the literal requirements of the Court of Claims Act has not properly commenced his action (Lichtenstein v State of New York, 93 NY2d 911, 913 [1999]). The failure of a claimant to strictly comply with Court of Claims Act § 10 (3) is a jurisdictional defect compelling dismissal of a claim (Kiesow v State of New York, 161 AD3d 1060 [2d Dept 2018]). Claimant failed to either serve a notice of intention to file a claim or file and serve a claim within ninety days of the accrual of her claims sounding in medical malpractice and lack of informed consent.
Court of Claims Act § 10 (6) permits a claimant to seek an order from the Court granting permission to file a late claim. 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 [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, Inc. 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. 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. Claimant has failed to demonstrate that defendant had timely notice of the essential facts constituting the claim nor an opportunity to investigate 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]). 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 claimant's favor.
It is unclear at this juncture whether claimant has another remedy available to him 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 for a claim to "appear to be meritorious": (1) it must not be patently groundless, frivolous, or legally defective, and (2) 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...[T]he court need only determine whether to allow the filing of the claim, leaving the actual merits of the case to be decided in due course. While this standard clearly places a heavier burden on a claimant who has filed late than upon one whose claim is timely, it does not, and should not, require him to definitively establish the merits of his claim, or overcome all legal objections thereto, before the court will permit him to file (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11-12 [Ct Cl 1977]).
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 demonstrate a potentially meritorious cause of action based on her allegations of medical malpractice, since she failed to provide an affidavit of merit from a physician (Decker v State of New York, 164 AD3d 650 [2d Dept 2018]). CPLR 3012-a (f) does not exempt a pro se litigant from this burden.
Similarly, claimant 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]).
Based upon the foregoing and having considered the statutory factors enumerated in Court of Claims Act § 10(6), claimant's motion is denied.
May 4, 2020
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims