Conroy v. StateConroy v. State
OPINION OF THE COURT
This is the motion of Alice Conroy for permission to file a late claim pursuant to section 10 (6) of the Court of Claims
In determining whether to grant this motion, six factors enumerated in the Court of Claims Act must be considered: whether (1) defendant had notice of the essential facts constituting the claim; (2) defendant had an opportunity to investigate the circumstances underlying the claim; (3) the defendant was substantially prejudiced; (4) the claimant has any other available remedy; (5) the delay was excusable; and (6) the claim appears to be meritorious. The factors are not necessarily exhaustive, nor is the presence or absence of any particular factor controlling.
The first, second and third factors — whether the defendant had notice of the essential facts, whether the defendant had an opportunity to investigate and whether the defendant would be prejudiced by the granting of this motion are intertwined and may be considered together. (See Brewer v State of New York,
As to an alternate remedy, defendant asserts that Conroy may file suit in Supreme Court against the “private attending physicians” who rendered treatment to her, referring to L. Krupp, M.D. Claimant responds that she is not complaining of
As to excuse, claimant asserts that her medical condition prevented her from timely filing a claim. In support thereof, she has submitted the affirmation of John P. Iafrate, M.D., claimant’s treating psychiatrist, who asserts that it is his opinion that claimant “was unable to file a claim due to her poor physical and psychological status. More specifically, she had poor recall of events, inability to read or write properly, and was unable to drive. It is also my opinion, that these impairments prevented her from functioning normally, and at times, caused her difficulty functioning even minimally. This was all noticeable from a period of several months after her hospitalization, when I began to treat her, and was the cause of her inability to file a timely claim.” (See affirmation of John P. Iafrate, M.D., Mar. 5, 2002, ¶ 7.) I find that claimant satisfies the excuse factor of the Court of Claims Act. (See Goldstein v State of New York,
The final factor to be considered is the appearance of merit. Claimant has submitted two affidavits from Bruce L. Hal-bridge, M.D., who states that it is his “opinion with reasonable medical certainty that the physicians, nurses, technicians and other hospital care-givers and personnel [at Stony Brook] departed from good and accepted medical practice in the care of’ claimant. (See affidavit of Bruce L. Halbridge, M.D., Feb. 27, 2002, ¶ 3.) He describes the departures as “failing to recognize the development and progression of serious postpartum pregnancy induced hypertension * * * .” (Id. ¶ 4.) Dr. Halbridge then provides a listing of claimant’s blood pressure on each day between August 16 through August 21, 1999, showing its rise from 118/62 to 126/65, 137/77, 147/90, 150/90 and 200/103, respectively. (Id.) He states that during this time “there was ample opportunity and time to recognize and then control the elevating blood pressure with the use of intravenous and oral anti-hypertensive medication.” (Id. ¶ 6.)
In sum, claimant meets the standard set forth in Matter of Santana v New York State Thruway Auth. (
It should be noted that defendant asserts that the proposed claim fails to comply with section 11 (b) of the Court of Claims Act; according to defendant, the claim does not contain sufficient particularization of the State’s conduct. Under Heisler v State of New York (
For the foregoing reasons, having reviewed the parties’ submissions,
Notes
. See Bay Terrace Coop. Section IV v New York State Employees’ Retirement Sys. Policemen’s & Firemen’s Retirement Sys.,
. The following were reviewed: claimant’s notice of motion with affirmation in support, the affidavit of Alice Conroy, physician’s affidavit with medical records, and proposed claim; defendant’s affirmation in opposition; and claimant’s reply affirmation with exhibits A-E.