Fleischman v. State of New York

Opinion

Fleischman v State of New York - 2026 NY Slip Op 04658

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Fleischman v State of New York

2026 NY Slip Op 04658

July 24, 2026

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

CHRISTINE FLEISCHMAN, AS ADMINISTRATOR OF THE ESTATE OF KATE ELIZABETH MURPHY, DECEASED, CLAIMANT-APPELLANT,

v

STATE OF NEW YORK, DEFENDANT-RESPONDENT.

Supreme Court of the State of New York, Appellate Division, Fourth Judicial Department

Decided on July 24, 2026

480 CA 25-01061

Present: Whalen, P.J., Lindley, Ogden, Nowak, And Delconte, JJ.

DEFRANCISCO & FALGIATANO, LLP, EAST SYRACUSE (CHARLES L. FALGIATANO OF COUNSEL), FOR CLAIMANT-APPELLANT.

LETITIA JAMES, ATTORNEY GENERAL, ALBANY (KEVIN C. HU OF COUNSEL), FOR DEFENDANT-RESPONDENT.

Appeal from an order of the Court of Claims (Ramón E. Rivera, J.), entered April 17, 2025. The order denied the motion of claimant for permission to file a late claim.

[*1]

It is hereby ORDERED that the order so appealed from is affirmed without costs.

Memorandum: Claimant seeks to bring an action against defendant State of New York (State) for medical malpractice and negligence arising from the treatment of claimant's decedent at the State University of New York Upstate Medical University Hospital (Upstate) in the days leading up to decedent's death. Claimant appeals from an order that denied her motion for permission to file a late claim, without prejudice to the filing of a new application. We affirm.

It is well settled that a determination by the Court of Claims to grant or deny an application for permission to file a late claim "lies within the broad discretion of that court and should not be disturbed absent a clear abuse of that discretion" (Mattison v State of New York, 246 AD3d 1425, 1426 [4th Dept 2026] [internal quotation marks omitted]). In exercising that discretion, the court must consider, at minimum, the six factors contained in Court of Claims Act § 10 (6): "(1) whether the delay 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 delay resulted in substantial prejudice to the State; and (6) whether the [applicant] has another available remedy" (Mattison, 246 AD3d at 1426; see Lichtenstein v State of New York, 93 NY2d 911, 912 [1999]; Santiago v State of New York, 218 AD3d 1268, 1269-1270 [4th Dept 2023]).

Here, the Court of Claims did not abuse its discretion by denying the motion. Initially, the court found that, although several of the factors weighed against claimant, including the lack of reasonable excuse for the delay, any prejudice to the State would likely be mitigated by the availability of decedent's medical records. The court correctly noted, however, that the most significant factor is "whether the claim appears to be meritorious" (Court of Claims Act

§ 10 [6]), because "it would be futile to permit the filing of a legally deficient claim which would be subject to immediate dismissal, even if the other factors tend to favor the granting of the request" (Phillips v State of New York, 179 AD3d 1497, 1498 [4th Dept 2020] [internal quotation marks omitted]; see Santiago, 218 AD3d at 1270). To prevail on this factor, a claimant "need not establish a prima facie case at this stage of the proceedings" (Mattison, 246 AD3d at 1427). "[A] claim has the appearance of merit if it is 'not . . . patently groundless, frivolous or legally defective, and the record as a whole . . . give[s] reasonable cause to believe that a valid cause of action exists' " (id.; see Calverley v State of New York, 187 AD3d 1426, 1427-1428 [3d Dept 2020]). Nonetheless, general or conclusory allegations of negligence or medical malpractice are [*2]insufficient (see Santiago, 218 AD3d at 1270; see also Kimball Brooklands Corp. v State of New York, 180 AD3d 1031, 1032 [2d Dept 2020]; Matter of Sandlin v State of New York, 294 AD2d 723, 724-725 [3d Dept 2002], lv dismissed 99 NY2d 589 [2003]).

Here, claimant's proposed claim provides only a brief recitation of the timeline of decedent's treatment at Upstate and asserts in conclusory fashion that "[t]his is a claim for negligence and medical malpractice" (see Santiago, 218 AD3d at 1270; Kimball Brooklands Corp., 180 AD3d at 1032). Further, although claimant provided decedent's "pertinent" medical records from the days leading up to decedent's death, "[m]erely having or creating hospital records, without more, does not establish actual knowledge of a potential injury where the records do not evince that the medical staff, by its acts or omissions, inflicted any injury" on claimant's decedent attributable to malpractice or negligence (Williams v Nassau County Med. Ctr., 6 NY3d 531, 537 [2006]; see Decker v State of New York, 164 AD3d 650, 653 [2d Dept 2018]). In this case, as the court noted, the alleged malpractice or negligence cannot be discerned from the face of the submitted records without the aid of expert medical opinion (see Decker, 164 AD3d at 653; see also Williams v State of New York, 224 AD3d 790, 792 [2d Dept 2024]). As the court also correctly recognized, this failure to sufficiently particularize the nature of a claim rendered the proposed claim subject to dismissal regardless of any prejudice to the State (see Court of Claims Act § 11 [b]; Williams, 224 AD3d at 792). We therefore conclude that the court did not abuse its discretion in denying claimant's motion, particularly where the denial was without prejudice to a new application by claimant for permission to file a late claim with a more particularized showing.

All concur except Nowak and Delconte, JJ., who dissent and vote to reverse in accordance with the following memorandum: Claimant's decedent presented to the State University of New York Upstate Medical University Hospital (Upstate) on December 21, 2022, was diagnosed with influenza A, and was discharged without admission to the hospital. The following day, decedent returned to Upstate via ambulance, and a chest X-ray revealed pneumonia in both lungs; the next morning, she was again discharged without admission to the hospital. On December 25, an ambulance was called after decedent was found unresponsive and no longer breathing. Resuscitative measures were unsuccessful, and decedent's death was attributed to complications from influenza, septic shock, and necrotizing bacterial pneumonia. She was 36 years old.

In our view, the Court of Claims plainly abused its discretion in denying claimant's motion for permission to file a late claim against defendant by erroneously concluding that claimant was required to establish a prima facie case of medical malpractice by way of a medical expert affidavit. Thus, we dissent.

We agree with the majority that in determining whether to grant or deny a motion for permission to file a late claim in the Court of Claims, that court must consider the six factors contained in Court of Claims Act § 10 (6) and the most significant factor is "whether the claim appears to be meritorious" (§ 10 [6]); in other words, to grant the application, the court must determine that the claim "is 'not

. . . patently groundless, frivolous or legally defective, and the record as a whole . . . give[s] reasonable cause to believe that a valid cause of action exists' " (Mattison v State of New York, 246 AD3d 1425, 1427 [4th Dept 2026]; see Santiago v State of New York, 218 AD3d 1268, 1270 [4th Dept 2023]). Nonetheless, here, the court concluded that "an expert affidavit is required to establish what the standard of care is, [and] what facts contributed to its breach, and to provide the critical link of proximate cause for the injuries suffered." That was error. Indeed, a claimant "need not establish a prima facie case at this stage of the proceedings" (Mattison, 246 AD3d at 1427 [emphasis added]).

Moreover, the proposed claim is not patently groundless or frivolous or the type of "legally deficient claim which would be subject to immediate dismissal" (Phillips v State of New York, 179 AD3d 1497, 1498 [4th Dept 2020] [internal quotation marks omitted]). Quite the contrary, "the record as a whole . . . give[s] reasonable cause to believe that a valid cause of action exists" (Mattison, 246 AD3d at 1427). To that end, the proposed claim sets forth the entire course of decedent's treatment at Upstate, including identifying decedent's treatment providers. The proposed claim states that it is for negligence and medical malpractice and [*3]alleges that decedent suffered pain and suffering and death as a result of the care and treatment she received.

In affirming, the majority all but adopts the court's clearly erroneous conclusion that an expert affidavit was required here, suggesting that "the alleged malpractice or negligence cannot be discerned from the face of the submitted records without the aid of expert medical opinion." Such a rule is inconsistent with our precedent that a claimant "need not establish a prima facie case" to present a claim that appears to be meritorious—i.e., a non-frivolous claim—in the context of a motion for permission to file a late claim (Mattison, 246 AD3d at 1427 [emphasis added]; see Court of Claims Act § 10 [6]). Setting that issue aside, we disagree with the majority's conclusion that the alleged negligence or malpractice cannot be discerned from the face of the records in this case. Decedent—age 36—presented to the hospital on two consecutive days. She was discharged without being admitted on both occasions; she was pronounced dead—from precisely the conditions for which she sought care—mere days later. To conclude that medical expert testimony is required under these facts is to effectively hold that medical expert testimony is required for every application for permission to file a late claim for medical malpractice under Court of Claims Act § 10 (6). That is not and never has been the law in the State of New York.

Because the court abused its discretion in denying claimant's motion for permission to file a late claim by erroneously concluding that claimant was required to establish a prima facie case of medical malpractice by way of a medical expert affidavit, we would reverse.

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court

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