New York State Court of Claims

New York State Court of Claims

DuPont v. STATE OF NEW YORK, #2003-018-223, Claim No. NONE, Motion No. M-66294


Synopsis


Movants' application is denied, no permission is necessary to file the claim on behalf of the infant.

Case Information

UID:
2003-018-223
Claimant(s):
KAYLA DuPONT, an Infant Under the Age of Ten Years, by and through MARY and MICHAEL T. DuPONT, her Parents and Natural Guardians
Claimant short name:
DuPont
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-66294
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
FELDMAN, SHEPHERD, WOHLGELERNTER & TANNERBy: Ezra Wohlgelernter, Esquire
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: Michael R. O'Neill, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
May 28, 2003
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Movants bring a motion for permission to file a late claim on behalf of their daughter.

Defendant opposes the motion.
Movants allege that their daughter suffered injuries as a result of defendant's medical malpractice in failing to deliver her sooner. The infant's mother was diagnosed as a high-risk pregnancy due to various pregnancy complications. The infant was born, January 14, 1993, four days before the mother's due date, suffering from severe perinatal asphyxia with brain damage. Movants' daughter is currently 10 years old, and as an infant, she is under a legal disability. Court of Claims Act § 10(5) allows a claimant who is under a legal disability to bring the claim anytime within two years after the disability is removed.[1]
Movants' daughter's claim is timely and there is no need to resort to a late claim application (See, Boland v State of New York, 30 NY2d 337; Leibowitz v State of New York, 82 Misc 2d 424; Weber v State of New York, 267 AD 325; Moore v State of New York, Ct Cl, J. Collins, unpublished decision, signed August 2, 2002, Claim No. None, Motion No. M-65101, UID No. 2002-015-277).[2]
Accordingly, movants' application is denied, no permission is necessary to file the claim on behalf of the infant.


May 28, 2003
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court considered the following documents in deciding this motion:

Notice of Motion........................................................................................1

Affirmation of Ezra Wohlgelernter, Esquire, in support with

exhibits attached thereto.................................................................2


Memorandum of Law in support................................................................3


Affirmation of Michael R. O'Neill, Esquire, Assistant Attorney

General, in opposition.....................................................................4


[1]Defendant argues that the late claim application has not been brought within 10 years of the date of accrual as required by CPLR 208. CPLR 208 requires, that for a medical, dental or podiatric malpractice action, no action shall be brought more than ten years after the date of accrual even if the person is under a legal disability due to infancy. However, Court of Claims Act § 10(5) places no similar restriction on bringing a medical malpractice claim on behalf of an infant; and accordingly, movants' claim in this Court on behalf of their daughter is timely.

[2]

Most unpublished Court of Claims decisions are available on the internet at www.nyscourtofclaims.state.ny.us/decisions.