Abruzzo v. State

• Decision Date: 18 December 2012
• Docket Number: # 2012-028-536,Motion No. M-81464
• Parties: PAUL M. ABRUZZO, Individually and as Executor of the Estate of JOAN M. ABRUZZO, Deceased v. THE STATE OF NEW YORK
• Court: New York Court of Claims

PAUL M. ABRUZZO, Individually and as Executor of the Estate of JOAN M. ABRUZZO, Deceased

v.THE STATE OF NEW YORK

# 2012-028-536

Motion No. M-81464

Court of Claims of New York

December 18, 2012

Synopsis

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.

Case information

UID:                              2012-028-536
                Claimant(s):                      PAUL M. ABRUZZO, Individually and as Executor of the Estate of JOAN M. ABRUZZO
                                                  Deceased
                Claimant short name:              ABRUZZO
                Footnote (claimant name) 
                Defendant(s):                     THE STATE OF NEW YORK
                Footnote (defendant name) 
                Third-party claimant(s)
                Third-party defendant(s)
                Claim number(s):                  NONE
                Motion number(s):                 M-81464
                Cross-motion number(s)
                Judge:                            RICHARD E. SISE
                                                  DUFFY & DUFFY
                Claimant's attorney:              BY: James N. LiCalzi, Esq.
                                                  Mary-Rita Wallace, Esq.
                                                  HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL
                Defendant's attorney:             BY: Joseph Tipaldo, Esq.
                                                  Assistant Attorney General
                Third-party defendant's attorney:
                Signature date:                   December 18, 2012
                City:                             Albany
                Comments:
                Official citation:
                Appellate results:
                See also (multicaptioned case)
                 

Decision

The following papers were read on Movant's motion for permission to file an untimely claim:

1. Notice of Motion and Supporting Affirmation of Mary-Rita Wallace, Esq., with annexed Exhibits;

2. Affirmation in Opposition of Joseph Tipaldo, AAG; and

3. Reply Affirmation of James N. LiCalzi, Esq.

Filed papers: None

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...