FILED: NYS COURT OF CLAIMS 06/11/ :56 AM CLAIM NO NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 06/11/2018 COURT OF CLAIMS. Claimants, Defendant.

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1 STATE OF NEW YORK OCIANA ARRINGTON, AS THE PARENT AND NATURAL GUARDIAN OF J.A., AND OCIANA ARRINGTON, INDIVIDUALLY, COURT OF CLAIMS Claimants, DECISION AND ORDER -v- THE STATE OF NEW YORK, Defendant. Claim No. NONE Motion No. M FILED BEFORE: HON. STEPHEN J. LYNCH Judge of the Court of Claims JUN STATE COURT OF CLAIMS ALBANY, N.Y. APPEARANCES: For Claimants: Wingate, Russotti, Shapiro & Halperin, LLP By: Lauren Pennisi, Esq. For Defendant: Hon. Barbara D. Underwood, Acting Attorney General By: Felicia Notaro, Assistant Attorney General Movant seeks late claim relief pursuant to Court of Claims Act (CCA) 10 (6) for a derivative claim for the loss of services and support of her injured infant. The child was allegedly injured due to medical malpractice during prenatal care beginning May 27, 2016 and during labor and an emergency delivery at the Stony Brook University Hospital (SBUH) on June 11, Defendant opposes the motion. A Notice of Intention to File a Claim, served on August 29, 2016, asserted only a claim on behalfof the infant for the care provided on June 10, 2016 through June 11, However, on April 1 of 5

2 Claim No. NONE, Motion No. M Page 2 4, 2017 movant filed a claim which also asserted a cause of action on behalf of herself in addition to that of her infant. On July 10, 2017, movant moved this Court for late claim relief, which was denied without prejudice by decision and order dated October 26, 2017 because she had not submitted a proposed claim with the motion. This motion for late claim relief, with proposed claim attached, was filed on February 1, The 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 [2004]). In determining whether late claim relief should be granted, consideration must be given to the six factors enumerated in CCA 10 (6). The presence or absence of any particular factor is not controlling, nor are the six factors necessarily exhaustive (see Broncati v State of New York, 288 AD2d 172 [2d Dept 2001]). The six statutory factors are as follows: (1) whether the defendant had notice of the essential facts constituting the claim; (2) whether the defendant had an opportunity to investigate the circumstances underlying the claim; (3) whether the defendant was substantially prejudiced by the delay; (4) whether the delay was excusable; (5) whether the claimant has any other available remedies; and (6) whether the claim appears to be meritorious. The factors of notice, opportunity to investigate and potential prejudice to the defendant are interrelated and may be considered together (see Wetter v State of New York,UID No [Ct Cl, Sise, P. J., June 17, 2013]). As the owner and operator of the hospital alleged to have failed to properly treat movant and her infant, the State may be deemed to have notice due to its possession of the relevant medical records ( see Ramirez v County of Nassau, 13 AD3d 456 [2d Dept 2004]). The mere existence of medical records, however, does not satisfy a claimant s obligation to place the State on notice of the underlying facts of a proposed claim (Conroy v State of New York, of 5

3 Claim No. NONE, Motion No. M Page 3 Misc 2d 71, 73 [Ct Cl 2002]). Here, given that the derivative claim of the mother springs from the same set of facts alleged in the timely Notice of Intention to File a Claim for the infant, it cannot be said that the State was unable to investigate or was prejudiced by the delay. These three factors weigh in favor of the movant. As an excuse for the delay, movant states that the omission of the derivative claim was mere administrative error. Nevertheless, law office failure is an inadequate excuse for the failure to timely file a claim (see Peters-Heenpella v Wynn, 105 AD3d 725, 726 [2d Dept 2013]; Lumpkin v State of New York, UID No [Ct Cl, Sampson, J., May 26, 2017]) and this factor is resolved in the State s favor. As to whether movant had another remedy available, this too is resolved in favor of the State. Movant has already sought damages in Suffolk County Supreme Court against several other defendants. Thus, there are other remedies available to her, which she is actively pursuing. Turning to the final factor of whether the proposed claim has merit, movant must establish that her claim is not patently groundless, frivolous or legally defective, and [that] upon consideration of the entire record, there is cause to believe that a valid cause of action exists (Taormina v State of New York, UID No [Ct Cl, Hard, J., Feb. 7, 2017], quotation and citation omitted). In any case alleging medical malpractice, expert medical evidence is generally required to demonstrate that the diagnosis and treatment rendered to claimant departed from accepted medical practices and standards (see Barnes v State of New York, 158 AD3d 961 [3d Dept 2018]). However, a supporting affidavit from a physician or other medical expert is not necessary if the appearance of medical malpractice can be determined based upon other submissions ( see DePaolo v State of New York, 99 AD2d 762 [2d Dept 1984]). 3 of 5

4 Claim No. NONE, Motion No. M Page 4 In support of her motion, proposed claimant submits the affidavit of Baha Sibai, M.D., a doctor who is board certified in maternal-fetal medicine in Texas but apparently not New York and a professor of obstetrics in Texas. Dr. Sibai s affidavit refers to specific visits, medical test results and other details and concludes that defendant s care of movant s infant departed from accepted practice and caused the injuries complained of. Defendant argues that the doctor s lack of a New York medical license renders his opinion irrelevant, but fails to cite any law to support this proposition. In sum, the expert affidavit supports an appearance of merit at this stage and the critical factor weighs in favor of movant. Based on the foregoing and having considered all the factors enumerated in CCA 10 (6), the Court finds that the factors weigh in favor of movant s application for late claim relief. The motion (M-91755) is therefore granted conditioned upon movant filing and serving the proposed claim in compliance with CCA 11 and 11-a, in the exact form as exhibit D (attached to the affirmation of Lauren Pennisi, Esq. dated February 1, 2018), within the forty-day period measured from the date of filing of this decision and order. Hauppauge, New York May 15, 2018 Judge of the Court of Claims 4 of 5

5 Claim No. NONE, Motion No. M Page 5 The following papers were read and considered by the Court on movant s motion for late claim relief: 1. Notice of Motion, Affirmation in Support with Exhibits. 2. Affirmation in Opposition with Exhibits. 3. Reply Affirmation with Exhibits. 5 of 5