The following papers were read on claimant's application for permission to file
a late claim pursuant to Court of Claims Act §10(6): Notice of Motion,
Affidavit, Proposed Claim, Exhibits annexed; Affirmation in Opposition.
The claimant seeks permission to file a late claim alleging negligence in the
operation of medical equipment causing injury to the claimant.
Although the 90-day period to serve and file a claim or to serve a notice of
intention has lapsed, Court of Claims Act §10(3), this application was
filed within the relevant statute of limitation so the Court has jurisdiction to
grant relief under §10(6), and has considered the factors listed therein.
See, Bay Terrace Cooperative Section IV, Inc. v New York State Employees'
Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979,
Upon the circumstances presented by the claimant, the delay in filing the claim
was not excusable. According to the claimant, she mistakenly commenced an
action against the City of New York in Supreme Court.
The defendant does not oppose this application on the basis of the statutory
factors of notice, opportunity to investigate, or prejudice caused by the delay.
Those factors are therefore presumed to weigh in the claimant's favor. See,
Calzada v State of New York, 121 AD2d 988; Cole v State of New York,
64 AD2d 1023, 1024. It is apparent from the claimant's submission that the
defendant was notified of the incident shortly after it occurred, and did
conduct an investigation.
The claimant's application sufficiently demonstrates that the proposed claim
appears to be meritorious. Contrary to the defendant's argument in opposition
to the application, the requirement of a physician's affidavit (Schreck v
State of New York, 81 AD2d 882), in support of an application for a late
claim alleging medical malpractice, is not absolute (DePaolo v State of New
York, 99 AD2d 762). Indeed, while the proposed claim includes the terms
"medical malpractice" and "negligence" it clearly alleges negligence in the
operation of the medical equipment.
It does not appear that the claimant has any other available remedy.
Contrary to the conclusory assertion by counsel for the defendant, the proposed
claim, which is quite detailed, contains all of the information set forth in
Court of Claims Act §11(b).
Having considered the relevant statutory factors, Bay Terrace, supra,
the balance of factors weigh in claimant's favor. It is therefore,
ORDERED, that claimant's application for permission to file a late claim
against the State of New York is granted; claimant shall file the proposed claim
in the form in which it is annexed to the application except that it shall name
only the State of New York as defendant, in accordance with the provisions of
Court of Claims Act §§ 11 and 11-a and Rule 206.5 of the Uniform Rules
for the Court of Claims, and serve it, in accordance with the provisions of
Court of Claims Act §11, either personally or by certified mail return
receipt requested, upon the Attorney General, within 45 days of the date of the
filing of this Order.