New York State Court of Claims

New York State Court of Claims

HAZELL v. THE STATE OF NEW YORK, #2000-014-534, , Motion No. M-62109


Application for permission to file a late claim is granted.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court of Claims does not have jurisdiction over "New York State Health Department Program and Downstate Hospital State University of New York, Health Science Center at Brooklyn Scientific and Medical Instrumentation Center" as entities distinct from the State of New York (see, Court of Claims Act §9). Thus, the Court sua sponte amends the caption of this application to delete those named defendants.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
Cross-motion number(s):

S. Michael Nadel
Claimant's attorney:
Pro se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Hector D. LaSalle, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 27, 2000
New York

Official citation:

Appellate results:

See also (multicaptioned case)


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, 981.

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.

November 27, 2000
New York, New York

Judge of the Court of Claims