Opinion
# 2020-058-019 Claim No. NONE Motion No. M-95118
02-24-2020
TODD SEARS AND SHAUNA SEARS v. STATE OF NEW YORK
Karasik Law Group, PC By: Alexander Karasik, Esq. Hon. Letitia James, Attorney General By: Maureen A. MacPherson, Esq., Assistant Attorney General
Synopsis
Motion for permission to serve and file a late claim alleging a cause of action for medical malpractice denied.
Case information
| UID: | 2020-058-019 |
| Claimant(s): | TODD SEARS AND SHAUNA SEARS |
| Claimant short name: | SEARS |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | The caption is amended by the Court sua sponte to reflect the State of New York as the only proper Defendant. |
|---|---|
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | NONE |
| Motion number(s): | M-95118 |
| Cross-motion number(s): | |
| Judge: | CATHERINE E. LEAHY-SCOTT |
| Claimant's attorney: | Karasik Law Group, PC By: Alexander Karasik, Esq. |
| Defendant's attorney: | Hon. Letitia James, Attorney General By: Maureen A. MacPherson, Esq., Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | February 24, 2020 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Movants Todd Sears and Shaun Sears seek permission to serve and file a late claim alleging a cause of action for medical malpractice. Although Claimants do not attached a proposed claim to their motion papers, they attach a complaint that they have previously filed in an action in St. Lawrence County Supreme Court (see Affirmation in Support of Mot for Permission to File Late Claim, Ex A). Consequently, for purposes of this motion, the Court will treat the Supreme Court complaint as the proposed claim (see Louis v CUNY Medgar Evers College, UID No. 2002-016-001 [Ct Cl, Marin, J., Jan. 8, 2002]).
Movants allege that, on or about October 23, 2018, Movant Shauna Sears was scheduled to donate one of her kidneys to her father-in-law, Movant Todd Sears, at SUNY Upstate Medical University Hospital ("Upstate"). During the procedure, it was allegedly discovered that Mr. Sears had a cancerous mass preventing the transplant. As a result, Ms. Sears' kidney, which was already harvested from her body, was donated to an unknown third party. Ms. Sears contends Defendant obtained her consent to transfer her kidney to another recipient at a time when she "was barely coming out from under anesthesia" and "was extremely confused and upset" (Affidavit of Shaun Sears, sworn to on December 31, 2019 ¶ 5, Affirmation in Support of Mot for Permission to File Late Claim, attach). Ms. Sears avers that she "only wanted to donate [her] kidney to [her] father in law [sic], Todd Sears, and if he was unable to receive it on that day, had [she] been thinking clearly, [she] would have chosen to put the kidney back in [her] body" (id. ¶ 6).
Mr. Sears claims that Defendant misdiagnosed him with a cancerous mass and, as a result, he did not receive a kidney transplant, was removed from the donor list, and his preferred donor, his daughter-in-law, is no longer able to donate her kidney to him (see Affidavit of Todd Sears, sworn to on December 27, 2019 ¶¶ 6-7, Affirmation in Support of Mot for Permission to File Late Claim, attach).
On or about May 8, 2019, Movants commenced an action in St. Lawrence County Supreme Court against Upstate and several named and fictitious doctors alleging a cause of action for medical malpractice ("the Supreme Court action") (see Affirmation in Support of Mot for Permission to File Late Claim, Ex A). On May 29, 2019, the Attorney General's Office answered on behalf of Upstate, asserting, as an affirmative defense, that Supreme Court lacked personal jurisdiction over Upstate and subject matter jurisdiction over any dispute involving Upstate, which must be commenced in this Court (see Affirmation in Support of Mot for Permission to File Late Claim, Ex B ¶¶ 29-30, 35, 38). The Supreme Court action was discontinued against Upstate without prejudice by stipulation of discontinuance filed on July 24, 2019 (see Affirmation in Support of Mot for Permission to File Late Claim, Ex C). This application for late claim relief ensued.
Court of Claims Act § 11 (a) (i) provides that a "claim shall be filed with the clerk of the court; and . . . a copy shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for filing with the clerk of the court." "A claimant seeking to recover damages for personal injuries caused by the negligence, intentional tort or unintentional tort of an officer or employee of the State must file and serve a claim or, alternatively, a notice of intention to file such a claim, upon the Attorney General within 90 days after the accrual thereof" (Maude V. v New York State Off. of Children & Family Servs., 82 AD3d 1468, 1469 [3d Dept 2011]; see Court of Claims Act § 10 [3], [3-b]).
The Court has discretion to permit the filing of a late claim pursuant to Court of Claims §10 (6) provided that the applicable statute of limitations set forth in Article 2 of the CPLR has not expired. Thus, the first issue for determination upon any late claim motion is whether the application is timely. The proposed claim alleges a cause of action for medical malpractice which carries a statute of limitations of two years and six months (see CPLR 214-a). Because it is undisputed that the proposed claim accrued on October 23, 2018 and the instant application was made on January 3, 2020, the proposed claim is timely.
Upon satisfaction that the proposed claim is timely, the Court will consider six statutory factors set forth in Court of Claims Act § 10 (6) as well as other relevant factors in determining whether to grant the late claim (see Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]). Although a movant need not satisfy every statutory factor enumerated in Court of Claims Act § 10 (6) (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 [1982]), the ultimate the burden rests with the movant to persuade the Court to grant his or her late claim motion (see Matter of Flannery v State of New York, 91 Misc 2d 797, 804 [Ct Cl 1977]).
The first factor to be considered is whether the delay in filing the claim was excusable. Movants contend that the late filing of his claim is excusable because they "filed their Summons and Complaint in Supreme Court" (Affirmation in Support of Mot for Permission to File Late Claim ¶ 12). However, the Supreme Court action was commenced after the 90-day statute of limitations expired. Simply stated, Movants fail to present any explanation for failing to file their Claim in this Court during the 90 days after their cause of action accrued (see Tom Machin Inc. v State of New York, UID No. 2013-028-506 [Ct Cl, Sise, J., Apr. 19, 2013] [commencement of a companion Supreme Court action not reasonable excuse for filing late claim where Supreme Court action commenced after the statutory period set forth in the Court of Claims Act]). Accordingly, this factor weighs in Defendant's favor.
The next three factors to be addressed--whether Defendant had notice of the essential facts constituting the Claim, whether Defendant had an opportunity to investigate the circumstances underlying the Claim, and whether the failure to file or serve a timely claim or to serve a notice of intention resulted in substantial prejudice to Defendant--are interrelated and will be considered together (see Brewer v State of New York, 176 Misc 2d 337, 342 [Ct Cl 1998]). Movants argue that Defendant had notice of the facts constituting his proposed claim by reason of the commencement of the Supreme Court action. Movants aver that the Supreme Court complaint "properly provided notice to all Defendants of the date, location, and the nature of the medical malpractice" (Affirmation in Support of Mot for Permission to File Late Claim ¶ 12). Notably, the Attorney General's Office answered the Supreme Court complaint on Upstate's behalf, albeit raising jurisdictional defenses.
On the other hand, Movants have not demonstrated that Defendant had notice of the facts constituting the Claim prior to the commencement of the Supreme Court action such that they could promptly investigate the circumstances underlying the Claim within 90 days of accrual. As Defendant notes, the fact that Upstate possessed medical records does not, by itself, demonstrate that it had notice of the essential facts constituting the claim and an opportunity to investigate (see Lerner v State of New York, 72 AD3d 406, 407 [1st Dept 2010], lv denied 15 NY3d 703 [2010]; Conroy v State of New York, 192 Misc 2d 71, 72 [Ct Cl 2002]). Thus, the factors of notice and opportunity to investigate militate against granting late claim relief. Nevertheless, the Court concludes, on balance, that Defendant would not be substantially prejudiced if late claim relief were granted in light of the fact that it appeared and defended the Supreme Court action and engaged in some discovery before the stipulation of discontinuance was filed.
The fifth factor to be considered is whether Movants have another remedy available. Movants, who commenced the Supreme Court action against the doctors and medical providers individually, have another remedy available (see Decastro v State of New York, UID No. 2019-050-044 [Ct Cl, Lynch, J., Oct. 2, 2019]; La Gray v State of New York, UID No. 2019-018-038 [Ct Cl, Fitzpatrick, J., July 8, 2019]). Consequently, this factor weighs in Defendant's favor.
The last and perhaps most important factor to be considered is whether the proposed Claim has the appearance of merit, for "it would be futile to permit a defective claim to be filed even if the other factors in Court of Claims Act § 10 (6) supported the granting of the [movant's] motion" (Ortiz v State of New York, 78 AD3d 1314, 1314 [3d Dept 2010], affd sub nom. Donald v State of New York, 17 NY3d 389 [2011] [internal quotation marks and citation omitted]). It is the movant's burden to show that there is reasonable cause to believe that a valid cause of action exists and that the claim is not patently groundless, frivolous or legally defective(see Sands v State of New York, 49 AD3d 444, 444 [1st Dept 2008]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]). Although this standard places a heavier burden upon a party who has filed late, it does not require a movant to definitively establish the merit of the claim or to overcome all legal objections before the Court will permit the filing of a late claim (see Matter of Santana, 92 Misc 2d at 11-12).
"The essential elements of medical malpractice are (1) a deviation or departure from accepted medical practice, and (2) evidence that such departure was a proximate cause of injury" (Gilmore v Mihail, 174 AD3d 686, 687 [2d Dept 2019] [internal quotation marks and citations omitted]; see Snyder v Simon, 49 AD3d 954, 956 [3d Dept 2008]). "Whether the claim is grounded in negligence or medical malpractice, '[w]here medical issues are not within the ordinary experience and knowledge of lay persons, expert medical opinion is a required element of a prima facie case'"(Tatta v State of New York, 19 AD3d 817, 818 [3d Dept 2005], lv denied 5 NY3d 712 [2005], quoting Wells v State of New York, 228 AD2d 581, 582 [2d Dept 1996], lv denied 88 NY2d 814 [1996]; Trottie v State of New York, 39 AD3d 1094, 1095 [3d Dept 2007]).
It is well settled that "[g]eneral allegations of medical malpractice, [which are] merely conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice are insufficient" to state a prima facie case (Alvarez v Prospect Hosp., 68 NY2d 320, 325 [1986]). Thus, "even with an affidavit from a doctor, merit may be absent when the submission is pro forma and lacks 'some explanation as to what was done wrong and why it was a departure from good and accepted medical standards'" (Hamilton v State of New York, UID No. 2012-016-032 [Ct Cl, Marin, J., July 18, 2012], quoting Favicchio v. State of New York, 144 Misc 2d 212, 214 [Ct Cl 1989]).
In support of their application, Movants submit an affirmation from Matthew Cooper, M.D., which merely states in conclusory fashion "that the claims of medical malpractice raised by [Movants] against . . . Defendant[] in this action have merit" (Expert Affirmation in Support of Motion for Permission to File Late Claim ¶ 4, Affirmation in Support of Mot for Permission to File Late Claim, attach) without expounding upon what Defendant has done wrong, if anything, and why it was a departure from good and accepted medical standards (cf. Bryant v State of New York, UID No. 2016-018-721 [Ct Cl, Fitzpatrick, J., May 12, 2016] [granting late claim motion alleging medical malpractice claim where the movant submitted an expert affidavit from a doctor explaining the national guidelines for infection control in health care facilities and opining "that the unclean bed linens on [the movant's] bed, as he was recovering from a previous amputation, was a cause of the E-coli infection he later suffered" and "further amputation of his right leg was the result of that infection"]). Moreover, Movants have not submitted any medical records to support the proposed medical malpractice claim (see Matter of Robinson v State of New York, 35 AD3d 948, 950 [3d Dept 2006] [affirming Court of Claims' denial of motion for permission to file a late claim for medical malpractice where the movant "provided no medical records or expert medical proof to support his allegations of medical malpractice"]; La Gray v State of New York, UID No. 2019-018-038; Scott v State of New York, UID No. 2019-040-008 [Ct Cl, McCarthy, J., Jan. 25, 2019] ["(i)n the absence of (the) Movant's medical records, the merit of any allegations of medical malpractice in his motion papers is not established. Further, in the absence of an expert affidavit, there is no support for his contention that (the) Defendant committed medical malpractice"]). Consequently, the Court concludes that the proposed claim, as presented, lacks the appearance of merit.
Therefore, upon balancing all of the factors in the Court of Claims Act section 10 (6), it is hereby:
ORDERED that Motion No. M-95118 seeking permission to serve and file a late Claim is denied.
February 24, 2020
Albany, New York
CATHERINE E. LEAHY-SCOTT
Judge of the Court of Claims The Court has considered the following in deciding this motion: (1) Notice of Motion dated January 3, 2020. (2) Affirmation of Alexander Karasik, Esq., in Support of Motion for Permission to File Late Claim, dated January 3, 2020, with attachments. (3) Affirmation of Maureen A. MacPherson, Esq., Assistant Attorney General, in Opposition, dated February 10, 2020.