New York State Court of Claims

New York State Court of Claims

MARRERO v. STATE OF NEW YORK, #2002-018-168, Claim No. NONE, Motion No. M-65299


Motion to file late claim granted without opposition from defendant.

Case Information

BESSIE MARRERO as Executrix of the Estate of CARLOS DIAZ, Deceased
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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Motion number(s):
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Claimant's attorney:
Defendant's attorney:
By: G. LAWRENCE DILLON, ESQUIRE Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 16, 2002

Official citation:

Appellate results:

See also (multicaptioned case)

This is a motion for permission to file a late claim. Defendant does not oppose the application. The application is granted.

The proposed claim seeks damages for the State's failure to timely diagnose a malignant mass in Carlos Diaz's jaw, while Mr. Diaz was an inmate at Marcy Correctional Facility (hereinafter Marcy) and Otisville Correctional Facility (hereinafter Otisville) from November 1998 to April 17, 2000. The cancer ultimately metastasized to Mr. Diaz's lungs and body, and he died on June 10, 2001.

A proposed claimant who fails to timely file and serve a claim or serve a notice of intention may be permitted, upon application and in the discretion of the court, to file a claim which complies with Section 11 of the Court of Claims Act, at any time before an action asserting a like claim against a citizen of the State would be barred under the provisions of article two of the CPLR (Court of Claims Act §10(6)). The motion is timely (Court of Claims Act §10(6), CPLR 214-a, CPLR 210(a)).

Moving to the substantive analysis, to determine whether an application for permission to file a late claim should be granted, consideration must be given to the six factors listed in Court of Claims Act §10(6), and any other relevant factors. The presence or absence of any one factor is not determinative (
Bay Terrace Cooperative Section IV, Inc., v New York State Employees' Retirement System, Policemen's and Firemen's Retirement System, 55 NY2d 979; Ledet v State of New York, 207 AD2d 965). Instead, it is a balancing of all of the factors by the Court which may warrant the granting of the application to file and serve a late claim.
Movant's counsel asserts as an excuse for the failure to timely serve a notice of intention or to file and serve a claim in accordance with Court of Claims Act §10, that Mr. Diaz believed that he had timely and properly served a notice of intention upon the assistant attorney general, thereby extending his time to file and serve a claim. Mr. Diaz served the notice of intention by regular mail instead of by certified mail, return receipt requested. Ignorance of the law is not an acceptable excuse (
Matter of E.K.(Anonymous) v State of New York, 235 AD2d 540, lv denied 89 NY2d 815; Sevillia v State of New York, 91 AD2d 792). This factor weighs against granting movant's application.
Turning to whether the State had notice, an opportunity to investigate the facts underlying the proposed claim, or whether the State would suffer prejudice if the application was granted; these factors, being interrelated, will be considered together. The State had notice and the opportunity to investigate when it was served over two years ago with the improperly served notice of intention. Moreover, the medical records from Mr. Diaz's visits to the infirmary and University Hospital of the State University of New York (hereinafter SUNY), will permit the State to identify witnesses and investigate the circumstances surrounding Mr. Diaz's medical care at Marcy and Otisville Correctional Facilities and SUNY Hospital. The Court finds that these factors weigh in favor of movant's application.

The next factor, whether the claim appears to be meritorious, is referred to as the most essential factor. Unlike a party who has timely filed a claim, one seeking permission to file a late claim has the heavier burden of demonstrating that the proposed claim appears to be meritorious (
See, Nyberg v State of New York, 154 Misc 2d 199). Generally a proposed claim meets this standard if it is not patently groundless, frivolous, or legally defective, and upon consideration of the entire record there is cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 11). Movant has established by her application that there is reasonable cause to believe a valid cause of action exists (See, Conroy v State of New York, 192 Misc 2d 71).
The final factor to be considered is whether movant has any other available remedy. The Court at this time finds that this factor weighs in favor of movant's application.
Upon balancing all of the factors in the Court of Claims Act §10(6), this Court GRANTS the motion. Movant is directed to file and serve the proposed verified claim in accordance with all applicable statutes and rules of this Court within 45 days of the date this Order is filed with the Clerk of this Court.

September 16, 2002
Syracuse, New York

Judge of the Court of Claims