New York State Court of Claims

New York State Court of Claims

MUCKOVA v. THE STATE OF NEW YORK, #2001-005-503, Claim No. 97318, Motion No. M-63247


Synopsis



Case Information

UID:
2001-005-503
Claimant(s):
NATASHA MUCKOVA, M.D.
Claimant short name:
MUCKOVA
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
97318
Motion number(s):
M-63247
Cross-motion number(s):

Judge:
Donald J. Corbett, Jr.
Claimant's attorney:
Schell & Schell, P.C.By: George A. Schell, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: James L. Gelormini, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 3, 2001
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

On March 28, 2001, the following papers, numbered 1 to 8, were read on motion by the Defendant for summary judgment dismissing the claim:

1, 2, 3 Notice of Motion, Affirmations and Exhibits Annexed

4, 5 Opposing Affidavits
  1. Reply Affirmation
7, 8 Filed Papers: Claim, Amended Answer

Upon the foregoing papers and after hearing George A. Schell, Esq., on behalf of the Claimant, and James L. Gelormini, Esq., on behalf of the Defendant, and upon the bench decision rendered orally on March 28, 2001, the motion is denied, on the basis that necessary and pertinent factual questions remain unresolved. To the extent that the said motion seeks dismissal on the ground that the Notice of Intention to file a claim was untimely as having being served more than 90 days after Claimant's cause of action accrued, i.e., when her damages became ascertainable. The Claimant has persuaded me that her damages became ascertainable when test results confirming that she was infected with Mycobacterium Tuberculosis became available on November 13, 1995. Accordingly neither the Notice of Intention to file a claim, served on January 9, 1996, nor the claim, filed on November 12, 1997, (see Third and Fourth Affirmative Defenses in the Amended Answer) are untimely, and the motion is denied on this basis as well.

This matter is scheduled for my next calendar call.



April 3, 2001
Rochester, New York

HON. DONALD J. CORBETT, JR.
Judge of the Court of Claims