Cite as: Abruzzo v. NYS, 2012-028-536, NYLJ 1202585570739, at *1 (Ct. of Clms., Decided December 18, 2012)

Judge Richard E. Sise

Decided: December 18, 2012


Claimant's attorney: By: James N. LiCalzi, Esq., Mary-Rita Wallace, Esq., Duffy & Duffy.

Defendant's attorney: Hon. Eric T. Schneiderman, Attorney General, Joseph Tipaldo, Esq., Assistant Attorney General


Motion for permission to file a late claim is granted. Although igorance of the law is no excuse, some consideration is given to Movant where the delay caused by catastrophic effect of death on the family and the attorney's legitimate need for a reasonable time to investigate the underlying facts and obtain an expert's affidavit.





Movant's proposed claim alleges that from September 14, 2010 through September 16, 2010, the decedent Joan Abruzzo sustained severe personal injuries, mental anguish, pain and suffering, and ultimately death as a result of the negligence and medical malpractice of the employees of Stony Brook University Medical Center.

Late claim relief is available only if the motion is brought within the applicable CPLR Article 2 statute of limitations. A negligence action, asserted against a private citizen or organization, would have to be commenced within three years (CPLR 214) and any causes of action based on medical malpractice would have to be commenced within two and one-half years (CPLR 214-a). Wrongful death actions must be commenced within two years after the death (EPTL §5-4.1). Consequently, this application is timely.

In order to determine whether an application for permission to file a late claim should be granted, consideration must be given to the six factors listed in the Court of Claims Act §10(6), as well as any other relevant factors. The existence or absence of any one of these factors is not determinative, and the list of factors is not exhaustive (Bay Terrace Cooperative Section IV, Inc. v. New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979 [1982]; Ledet v. State of New York, 207 AD2d 965 [4th Dept 1994]). The six statutory factors are as follows:

(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 to be meritorious;

(5) whether the failure to file or serve upon the attorney general a timely claim or to serve a notice of intention resulted in substantial prejudice; and

(6) whether the claimant has any other remedy.

In the instant application, there are two different periods of delay that must be considered. In a claim for personal injury, including pain and suffering, a claim or notice of intention must be served within 90 days of the accrual of the claim (Court of Claims Act §10[3]), or in this case by December 15, 2010. The late claim application was filed on April 30, 2012, one year and four months after the permitted time period. A claim for wrongful death, however, is to be filed and served within 90 days of the date that the executor or administrator is appointed, or a notice of intention to file a claim may be served within that 90-day period in which case the claim must be filed and served within two years of the date of death of the decedent (Court of Claims Act §10[2]). Here, Movant was issued Limited Letters of Administration on December 19, 2011, so a claim or a notice of intention should have been filed on or before March 19, 2012. The instant motion was commenced approximately one and one-half months after that date.

Counsel for Movant asserts that the delay in this case was excusable, in part, because Movant was overwhelmed by the death of his wife and, in addition, burdened with assuming responsibility for the houshold and care and support of four children. He was also unaware of the shortened time period for commencing actions in this Court, or that Stony Brook had to be sued in the Court of Claims and consequently did not seek legal counsel until September 2011, approximately one year after his wife's death. Joan Abruzzo passed away suddenly and unexpectedly, 12 days after she had been involved in a motor vehicle accident in which the parked car in which she was sitting had been struck by another vehicle. Immediately after the accident, she was admitted to the emergency room of another hospital but discharged after it was determined that there were no significant injuries. Ten days later, however, she collapsed at work and was taken to Stony Brook, where she was admitted. On the second day after her admission, after appearing to rally at one point, she passed away.

At the time of his wife's death, Movant was working two jobs: one from 1:00 p.m. to 1:00 a.m. and a second one from 3:00 a.m. to 8:00 a.m., and his wife was in complete charge of managing the household and providing care for the couple's four children, three of whom were minors. In addition, she held a part-time job as a school monitor and her salary was used to help support the family. Movant states that his wife's death was a "sudden and devastating




blow" to him and to the rest of the family (Wallace affirmation, Exhibit 3 [Affidavit of Paul Abruzzo], ¶9) and that the months immediately after her death were consumed by their trying to adjust to the many changes. Movant also states that he was "totally unaware" of the 90-day period in which actions had to be commenced, or a notice of intention filed, against the hospital (id., ¶3).

A second, quite different period of delay occurred after the firm of Duffy & Duffy was retained by Movant in September 2011. Counsel states that before they could file a claim for wrongful death, or apply for permission to file an untimely claim for pain and suffering, the law firm had to conduct an investigation of the circumstances of decedant's death and determine whether there was a viable claim. Although her University Medical Center records were requested immediately, they were not received, counsel states, until December 27, 2011. Once those records were received, it was necessary for the attorneys to review and analyze them, obtain a medical expert, and receive the expert's report and opinion about whether there had been a departure from the accepted standards of care. "This was a time-consuming process that took several months before the affidavit from plaintiffs' [sic] pulmonary expert (attached hereto as Exhibit '8') was finally prepared and reviewed" (Wallace affirmation, ¶20). Exhibit 8, the expert affidavit of Igal Staw, M.D., is dated April 17, 2012, and the motion was instituted within two weeks after it was issued.

While it is certainly understandable, at a human level, that Movant was not thinking about litigation during the period immediately following his wife's death, the generally accepted and applied rule is that ignorance of the law does not provide an acceptable excuse for failure to comply with the requirements of the Court of Claims Act (see e.g. Anderson v. City University of New York, 8 AD3d 413 [2d Dept 2004]; Sandlin v. State of New York, 294 AD2d 723 [3d Dept 2002]; Matter of P.A. v. State of New York, 277 AD2d 671 [3d Dept 2000]). This rule is not always applied with absolute rigidity, however (62A NY Jur 2d, Government Tort Liability §323, and cases cited therein). In a situation somewhat similar to the one presented here, some degree of consideration was given to the widow of a man killed in an automobile collision when she had had to take over all responsibility for four minor children and, in addition, lived in another State, making it less likely that she would be aware of New York law. In affirming the Court of Claims' ruling which granted permission to late file, the Third Department stated:

[S]uch cases [holding that ignorance of the law is no excuse] are not ipso facto controlling so far as the exercise of discretionary power is concerned. The Court of Claims in the exercise of its discretion in this case did not ignore the proposition that ignorance of the law is ordinarily not a reason for granting permission to file a late claim, but nevertheless exercised its discretion in the light of the circumstances of this case….

(Potter v. State of New York, 5 AD2d 725, 726 [1957].)1 Similarly, in this case, the Court remains mindful of the general rule that ignorance of the law is no excuse for delay and that, in this case, Movant is a New York resident. At the same time, some acknowledgment will be given to the fact that the very real life pressures on Movant during the first year after his wife's death inevitably played some role in his inattention to the filing deadlines.

With respect to the second period of delay, between the appearance of counsel and the filing of this motion, counsel does not cite and research has not disclosed any discussion of whether some delay after counsel is retained can be considered excusable. In any type of lawsuit, however, the attorney should gather enough information to make an intelligent assessment of the circumstances, simply to assure that the claim is not frivolous or unfounded. In addition, some time will be required to obtain specific information and craft a claim or complaint that includes all necessary allegations, since the attorney's ability to remedy any pleading defects or omissions at a later time is limited. The need for investigation and careful pleading is particularly important when leave to late file is to be sought in medical malpractice actions, as those applications must, in almost all cases, be accompanied by an expert's affidavit establishing the apparent merit of the claim (Wood v. State of New York, 45 AD3d 1198, 1198 [3d Dept 2007]; Matter of Robinson v. State of New York, 35 AD3d 948, 950 [3d Dept 2006]); Matter of Perez v. State of New York, 293 AD2d 918, 919 [3d Dept 2002]). A decision that touches on this issue also serves to point up the difficulty facing the movants. In Berry v. State of New York (115 AD2d 153, 154 [3d Dept 1985]), it had been held that the time taken by an attorney to conduct an investigation was not excusable but, at the same time, that "the supporting papers were entirely insufficient to indicate the meritorious nature of the claim." In the instant case, given the complexity of the medical conditions suffered by the decedent and the requirement that the application be accompanied by an expert's affidavit, the Court concludes that the four-month period of delay awaiting the report of the expert is excusable.




With respect to whether Movant has an alternative remedy, counsel acknowledges that Supreme Court actions against the individual doctors are possible but argues that that option is not available for actions against the nurses, respiratory thereapists, and other personnel who participated in decedent's treatment.

The factors of notice, opportunity to investigate and potential prejudice to the Defendant are interrelated. Counsel for the State argues that it will be irreparably prejudiced if permission to late file is granted but mentions no specifics. Defendant is certainly aware that the applicable law requires a wrongful death claim to be filed within 90 days after the executor or administrator is appointed, and in this case that was only approximately four months before the date on which this motion was commenced. Since the facts underlying the cause of action for pain and suffering are the same as those underlying the cause of action for wrongful death, and Defendant has had almost all of the notice that the law requires for the latter (see Nyberg v. State of New York, 154 Misc 2d 199 [Ct Cl 1992]; Matter of Crawford v. City Univ. of N.Y., 131 Misc 2d 1013 [Ct Cl 1986]; 62A NY Jur 2d, Government Tort Liability §319, n 7), the Court concludes that Defendant has not been substantially prejudiced or deprived of the legally required opportunity to investigate the underlying circumstances.

Of the six enumerated factors set forth in §10(6), it is the appearance of merit which weighs most heavily, because it would be pointless to permit the filing of a claim that did not appear to be meritorious (see e.g. Prusack v. State of New York, 117 AD2d 729 [2d Dept 1986]. Unlike those who file their claims in a timely manner, a party seeking to file a late claim must demonstrate to the Court's satisfaction that the proposed claim appears to be meritorious (see Witko v. State of New York, 212 AD2d 889 [3d Dept 1995]; Nyberg v. State of New York, 154 Misc 2d 199 [Ct Cl 1992]). To succeed, a movant must establish that the proposed claim is not patently groundless, frivolous, or legally defective and 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 1997]).

Movant's expert has provided an affidavit in which he gives his opinion that there were several instances where the treatment accorded Movant's decedent departed from the accepted standard of care, among them the medical staff's decision to extubate her on September 16th and failing to properly and timely re-insert the breathing tube. Defendant's only argument on the issue of merit is that the claim is not supported by a certified copy of the medical records, but certification of the records submitted in support of a motion for permission to file an untimely claim is not required.

Taking into account the six statutorily prescribed factors, the Court finds them to weigh in favor of granting the requested relief. Movant therefore is directed to file and serve a claim identical to the proposed claim, annexed as Exhibit 1 to the Wallace affirmation, and to do so in conformity with the requirements of Court of Claims Act §§10, 11 and 11-a within thirty (30) days of the date this Decision and Order is filed.

Movant's motion is granted.

1. Potter has been cited as precedent only in connection with actions where the injured party is a non-resident (Ernst v. State of New York, 15 Misc 2d 954, 958 [Ct Cl 1958, affd 8 AD2d 900 [3d Dept 1959]; MacMillan v. State of New York, 30 Misc 2d 976 [Ct Cl 1961]), but the Third Department's holding in Potter was not so limited.