New York State Court of Claims

New York State Court of Claims

VASSER v. THE STATE OF NEW YORK, #2001-014-508, Claim No. 101905, Motion No. M-62482


Application for late claim is granted.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court of Claims does not have jurisdiction over "SUNY @ StonyBrook" or "StonyBrook School of Dental Medicine"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:
Sandra Vasser, Pro Se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Hector D. LaSalle, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 14, 2001
New York

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on the claimant's application for permission to file a late claim: Motion for permission to file late claim and exhibit annexed; Affirmation in Opposition.

The claimant, apparently in response to the defendant's Fifth Affirmative Defense in its Answer to the claim herein, seeks permission to file a late claim. It is apparent that the claim was served and filed more than 90 days from its accrual on March 9, 1998, and it does not appear that a Notice of Intention was timely served upon the Attorney General. Although the defendant has not moved to dismiss the claim, filing and service of the claim more than 90 days after its accrual deprives the Court of jurisdiction. Byrne v State of New York, 104 AD2d 782, lv denied 64 NY2d 607, Mallory v State of New York, 196 AD2d 925.

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. Contrary to the argument of counsel for the defendant, the application is not barred by the statute of limitations for actions alleging medical malpractice. The allegations of the claim are that a dental student at the Stony Brook School of Dental Medicine cut his finger while treating the claimant, and continued to treat her while his blood entered her mouth. These allegations amount to ordinary negligence. "The distinction between ordinary negligence and malpractice turns on whether the acts or omissions complained of involve a matter of medical science or art requiring special skills not ordinarily possessed by lay persons or whether the conduct complained of can instead be assessed on the basis of the common everyday experience of the trier of the facts [citations omitted]." Miller v Albany Medical Center Hospital, 95 AD2d 977, 978.

The only other basis for the defendant's opposition to this application is that the claimant has not offered an excuse for the delay in filing a claim.[1] While this appears to be the case, in the absence of any opposition by the defendant on the basis of the statutory factors of notice, opportunity to investigate, or prejudice caused by the delay[2] (see, Calzada v State of New York, 121 AD2d 988; Cole v State of New York, 64 AD2d 1023, 1024, and upon consideration of all of the factors set forth in §10(6), the circumstances warrant the exercise of the Court's discretion to grant the application. It is therefore,

ORDERED, that the claimant's application for permission to file a late claim against the State of New York is granted; claimant shall file the claim, naming only the State of New York as a defendant, in the same form as Claim No. 101905, 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.

February 14, 2001
New York, New York

Judge of the Court of Claims

[1]The defendant also notes the absence of a proposed claim. The Court has considered the claim herein (Claim No. 101905), which was filed and served, albeit late, as the proposed claim.

[2]It is apparent from the claimant's submission that the defendant had notice of the essential facts constituting the claim and an opportunity to investigate the circumstances underlying the claim within ninety days of its accrual. See, letter dated May 18, 1998, from Stony Brook Health Sciences Center School of Dental Medicine to the claimant, in which it is stated: "In response to your letters, we are determining an appointment date for legal council to meet as soon as possible."