Opinion
# 2011-030-600 Motion No. M-80236
10-06-2011
SEALES v. THE STATE OF NEW YORK
Synopsis
Late claim motion granted for conscious pain and suffering and wrongful death as a result of inadequate medical care. Proposed administrator for estate has standing to make such motion (although claim subsequently served and filed would need to be made by duly appointed representative). Court of Claims Act §§10(2) and 10(3) compared. Case information
+-----------------------------------------------------------------------------+ ¦UID: ¦2011-030-600 ¦ +-------------------------+---------------------------------------------------¦ ¦Claimant(s): ¦ADRIAN SEALES AS ADMINISTRATOR OF THE ESTATE OF ¦ ¦ ¦VERNON SEALES ¦ +-------------------------+---------------------------------------------------¦ ¦Claimant short name: ¦SEALES ¦ +-------------------------+---------------------------------------------------¦ ¦Footnote (claimant name) ¦ ¦ ¦: ¦ ¦ +-------------------------+---------------------------------------------------¦ ¦Defendant(s): ¦THE STATE OF NEW YORK ¦ +-------------------------+---------------------------------------------------¦ ¦Footnote (defendant name)¦The caption has been amended to reflect the only ¦ ¦: ¦proper defendant. ¦ +-------------------------+---------------------------------------------------¦ ¦Third-party claimant(s): ¦ ¦ +-------------------------+---------------------------------------------------¦ ¦Third-party defendant(s):¦ ¦ +-------------------------+---------------------------------------------------¦ ¦Claim number(s): ¦NONE ¦ +-------------------------+---------------------------------------------------¦ ¦Motion number(s): ¦M-80236 ¦ +-------------------------+---------------------------------------------------¦ ¦Cross-motion number(s): ¦ ¦ +-------------------------+---------------------------------------------------¦ ¦Judge: ¦THOMAS H. SCUCCIMARRA ¦ +-------------------------+---------------------------------------------------¦ ¦ ¦DIEFENBACH, PLLC ¦ ¦Claimant's attorney: ¦ ¦ ¦ ¦BY: GORDON DIEFENBACH, ESQ. ¦ +-------------------------+---------------------------------------------------¦ ¦ ¦HON. ERIC T. SCHNEIDERMAN, ¦ ¦ ¦ ¦ ¦ ¦ATTORNEY GENERAL OF THE STATE OF NEW YORK ¦ ¦Defendant's attorney: ¦ ¦ ¦ ¦BY: JOSEPH TIPALDO, ¦ ¦ ¦ ¦ ¦ ¦ASSISTANT ATTORNEY GENERAL ¦ +-------------------------+---------------------------------------------------¦ ¦Third-party defendant's ¦ ¦ ¦attorney: ¦ ¦ +-------------------------+---------------------------------------------------¦ ¦Signature date: ¦October 6, 2011 ¦ +-------------------------+---------------------------------------------------¦ ¦City: ¦White Plains ¦ +-------------------------+---------------------------------------------------¦ ¦Comments: ¦ ¦ +-------------------------+---------------------------------------------------¦ ¦Official citation: ¦ ¦ +-------------------------+---------------------------------------------------¦ ¦Appellate results: ¦ ¦ +-------------------------+---------------------------------------------------¦ ¦See also (multicaptioned ¦ ¦ ¦case) ¦ ¦ +-----------------------------------------------------------------------------+ Decision
The following papers were read and considered on claimant's motion for late claim relief:
1 - 5 Notice of Motion, Petitioner's Affidavit by Adrian Seales, Attorney Affirmation by Gordon Diefenbach, Attorney for Claimant, Physician Affidavit of Merit by Dr. Richard Hirschman, M.D., proposed Claim
6 Affirmation in Opposition by Joseph Tipaldo, Assistant Attorney General
Adrian Seales alleges that he is the proposed Administrator for his father's estate, and seeks permission to serve and file a late claim with respect to Vernon Seales' wrongful death and conscious pain and suffering as a result of inadequate medical care received at SUNY Downstate Medical Center from December 14, 2009 to April 27, 2010.
In the proposed claim, claimant alleges that the defendant departed from accepted medical practice in their treatment of decedent because they failed to timely treat hydronephrosis, allowed the development of fourth degree decubitus ulcers, and failed to properly administer and monitor anticoagulation medication, causing decedent Vernon Seales pain and suffering, and resulting in a deep vein thrombosis and, ultimately, his wrongful death. A date of accrual of April 27, 2010 is alleged therein, presumably the date of death. In an affidavit sworn to July 25, 2011, Adrian Seales writes that he applied for Limited Letters of Administration in December, 2010 with regard to his deceased father but had not yet received same.
Although elsewhere, in the Physician's Affidavit of Merit submitted, the date of death is noted as May 2010. [See Physician Affidavit of Merit by Dr. Richard Hirschman, M.D., Page 2].
In terms of excuse, Mr. Seales was unaware that the medical facility was a State-run facility, and that a claim needed to be filed within 90 days of its accrual. He indicates that there is no prejudice to defendant as the claim accrued less than a year ago and there are medical records extant. Finally, he states that the claim has merit, and refers to his medical expert.
In further support of this application, claimant has attached a Physician Affidavit of Merit by Richard Hirschman, M.D. which supports his allegations that decedent received inadequate medical care at defendant's hospital, causing pain and suffering during his lifetime, and leading to his wrongful death. Dr. Hirschman states that his review of decedent's medical records found various departures from accepted medical practice and negligence, including failures to timely diagnose hydronephrosis leading to swelling of the kidneys and complete kidney failure, improper monitoring for ulcers, and a failure to use properly sterilized catheters and monitor same, causing kidney and bladder infections. He opines that such departures from accepted medical practice led to urosepsis, peritonitis, and the death of Vernon Seales.
In order to determine an application for permission to serve and file a late claim, the Court must consider, "among other factors," the six factors set forth in Court of Claims Act §10(6). The factors stated therein 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 claim appears meritorious; (5) whether substantial prejudice resulted from the failure to timely serve upon the Attorney General a claim or notice of intention to file a claim, and the failure to timely file the claim with the Court of Claims; and (6) whether any other remedy is available. The Court is afforded considerable discretion in determining whether to permit the late filing of a claim. The presence or absence of any particular factor is not dispositive.
Additionally, the motion must be timely brought in order to allow that a late claim be filed ". . . at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules . . ." Court of Claims Act §10(6).
Defendant opposes the application, arguing first that claimant does not have standing to make the present motion for late claim relief because he has not yet been appointed administrator of his father's estate, that the claimant has no excuse for the proposed late service and filing of a claim, and that the State would suffer prejudice because of a lack of notice and opportunity to investigate, among other contentions.
As to whether claimant has standing to make a motion for late claim relief, just as a notice of intention may be served effectively by a prospective legal representative prior to any appointment or authority to act in a representative capacity [see Matter of Johnson v State of New York, 49 AD2d 136 (3d Dept 1975)], there is no reason why this claimant, who alleges his appointment is pending and who alleges he is the son of the decedent, would not have "standing" to make a motion for late claim relief. Of course, any claim subsequently served and filed, should appropriate late claim relief be granted, would need to be served by the duly appointed legal representative, otherwise such would be defective.
Court of Claims Act §10(2) provides that a wrongful death claim by an executor or the administrator of an estate against the State of New York must be served within ninety (90) days of the appointment of the executor or administrator, unless 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 death of the decedent. In any event such claim shall be filed and served upon the attorney general within two years after the death of the decedent." Since claimant has not yet been appointed as decedent's legal representative, a claim asserting wrongful death is not yet justiciable. Notably since the decedent's date of death - although inartfully presented in the present application - was either April 27, 2010 or May 2010, any claim must be served and filed by April or May 2012, or else be time barred without the possibility of late claim relief. Jones v State of New York, 69 AD2d 936 (3d Dept 1979) affd 51 NY2d 943 (1980).
The Appellate Division dismissed a wrongful death claim, noting "Even if claimant's first application was treated as a notice of intention, such notice does not hold open the court's jurisdiction beyond the two-year limit for filing the claim . . . (citations omitted)."
Court of Claims Act §10 (2) does not apply to an action for decedent's pain and suffering however. See Kaplan v State of New York, 152 AD2d 417 (1989). Rather, the applicable provisions for a cause of action for conscious pain and suffering based on defendant's negligence and/or malpractice are set forth in Court of Claims Act §10(3), which requires that either a claim be filed and served or a notice of intention be served for such cause of action within 90 days of the accrual of the claim, here, decedent's date of death. Measured by either asserted date of death, any claim filed at this juncture would be untimely, thus an application for late claim relief is appropriate and is timely made measured by either negligence or medical malpractice periods of limitation provided for like citizens. This is because Civil Practice Law and Rules §214 (5) provides that an action for personal injuries must be commenced within three years from the date of accrual, while medical malpractice claims must be commenced within 2½ years from the date of accrual [Civil Practice Law and Rules §214-a].
Although the excuse offered, that claimant was not aware of that the hospital was State-run, and was not aware of the associated time constraints, is not persuasive, the absence of an excuse is but one of the factors to be considered, and does not necessarily preclude relief. Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 (1982).
The closely related factors of notice, opportunity to investigate and prejudice to the State, considered together, weigh toward granting claimant's motion. The defendant argues that the present motion, served on or about July 25, 2011 was the first notice of any claim concerning the treatment of Vernon Seales, indicates that the proposed claim submitted does not adequately present facts that would enable the State to investigate this claim and formulate a theory of defense, and that the time period that has passed is not minimal. Other than counsel's own declaration that the delay has precluded an ability to investigate - without any indication that any investigation has been attempted and failed - there is no reason why the State could not ascertain its potential for liability and formulate a theory of defense based on what is set forth in the proposed claim, and the other papers accompanying the motion. Notably, there is no affidavit by someone with knowledge attesting to a failed attempt to investigate that has been included in the opposition. The passage of time has not been so great that the State's ability to investigate is impeded to its prejudice.
As to other remedies, none appears available, unless a lawsuit against individuals for whose actions the State would not be responsible could be maintained in State Supreme Court.
A claim appears to be "meritorious" within the meaning of the statute if it is not patently groundless, frivolous or legally defective and a consideration of the entire record indicates that there is reasonable cause to believe that a valid cause of action exists. Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 (Ct Cl 1977). Claimant need not establish aprima facie case at this point, but rather the appearance of merit.
". . . [I]n considering a motion for permission to file a late claim, the court looks at all of the submitted papers, including affidavits and exhibits, to determine whether a putative claimant has met the statutory burden of 'apparent merit' and is not confined to the text of the proposed claim itself." Mamedova v City Univ. of N.Y., 13 Misc 3d 1211(A)(Ct Cl 2006)citing to Matter of Santana v New York State Thruway Auth., supra.
Counsel for defendant has submitted only his own affirmation in opposition to claimant's motion. "When answering affidavits are not produced, the facts alleged in the moving affidavits will be taken by the court as true . . . (citation omitted)." Cole v State of New York, 64 AD2d 1023, 1024 (4th Dept 1978). As a result, no rebuttal by a person with knowledge as to the factual assertions made by claimant are included in defendant's submission.
The proposed claim itself does not contain the most expansive description of the nature of the claim, but sets forth enough information when read together with the affidavit by Adrian Seales, the Attorney Affirmation and the Physician Affidavit of Merit to satisfy the requirement that a claim have the appearance of merit for late claim purposes.
Accordingly, and after careful consideration of all the appropriate factors, the Court hereby exercises its discretion to find that claimant's motion for permission to serve and file a late claim is hereby granted. Claimant is directed to serve a properly verified claim that complies with the pleading requirements of Court of Claims Act §11(b), upon the defendant, naming only the State of New York as required, and to file it with the Chief Clerk of the Court of Claims, within ninety (90) days from issuance of Letters of Administration appointing claimant to act as the representative of decedent, Vernon Seales, with respect to any cause of action alleging pain and suffering, and within ninety (90) days of such appointment with regard to any cause of action for wrongful death as statutorily required by Court of Claims Act §10(2), with such service and filing to be in accordance with the Court of Claims Act and the Uniform Rules for the Court of Claims.
See Heisler v State of New York, 78 AD2d 767, 768 (4th Dept 1980) as to what is an adequate description of the "time when and place where such claim arose, [and] the nature of same . . ." as required by Court of Claims Act §11 (b).
The Court of Claims is a Court of limited jurisdiction, that may only exercise jurisdiction in cases or controversies for money damages in which the State is a party. Court of Claims Act §9. Although there are other entities sued in their own names in the Court of Claims, SUNY Downstate Medical Center is not such an entity, but is a State agency. Thus the proper party defendant is the State of New York.
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October 6, 2011
White Plains, New York
THOMAS H. SCUCCIMARRA
Judge of the Court of Claims