New York State Court of Claims

New York State Court of Claims

TRUEHART v. THE STATE OF NEW YORK, #2003-031-016, Claim No. NONE, Motion No. M-66266


Synopsis


Analysis of the factors enumerated in CCA § 10(6) weigh in Claimant's favor. Claimant's motion for permission to file a late claim is granted

Case Information

UID:
2003-031-016
Claimant(s):
PATRICIA TRUEHART
Claimant short name:
TRUEHART
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-66266
Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
HAGELIN & BISCHOF, LLCBY: DENNIS J. BISCHOF, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: RICHARD B. FRIEDFERTIG, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 3, 2003
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers, numbered 1 to 5, were read on motion by Claimant for permission to file a late claim:
1. Claimant's Notice of Motion, filed January 13, 2003;
2. Affirmation of Dennis J. Bischof, Esq., dated January 3, 2003, with attached exhibits;
3. Affidavit of Patricia Truehart, sworn to January 22, 2003;
4 Claimant's proposed claim, received January 22, 2003;

5. Affidavit of Richard B. Friedfertig, Esq., sworn to January 24, 2003.

Upon the foregoing papers, and upon oral argument from counsel in this matter, the motion is granted. This is the motion of Patricia Truehart for permission to file a late claim pursuant to § 10(6) of the Court of Claims Act (the "CCA"). This is Claimant's second application for this relief; her first having been denied without prejudice by Decision and Order of this Court filed August 23, 2002. Claimant alleges that, on November 22, 2001, while a patient at the Stutzman Addiction Treatment Center ("Stutzman"), she was injured while taking a shower in her room. Apparently, Claimant suffers from multiple sclerosis and, when showering at the facility, required the use of a bench, which was affixed to the shower wall. When Claimant sat on the bench, the bench gave way and she fell to the floor. Claimant suffered fractures and ligament damage to her left foot. She also underwent two surgeries at Erie County Medical Center ("ECMC") on November 30, 2001 and March 15, 2002.

Subdivision 6 of § 10 of the CCA enumerates six factors to be weighed in connection with a late claim motion: (1) whether the delay was excusable; (2) whether Claimant has any other remedy; (3) whether Defendant had notice of the essential facts constituting the claim; (4) whether Defendant had an opportunity to investigate; (5) whether Defendant would be substantially prejudiced; and (6) whether the claim appears to be meritorious. This list is not exhaustive and the presence or absence of any one factor is not dispositive. Rather, the Court in its discretion balances these factors in making its determination (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979).

Defendant's opposition to Claimant's motion relates only to the factor of merit and, therefore, the other factors are deemed to weigh in Claimant's favor (see Calzada v State of New York, 121 AD2d 988; Cole v State of New York, 64 AD2d 1023, 1024). Defendant's objection as to merit is a technical objection and relates to the somewhat unorthodox way that Claimant's motion papers were filed. Claimant initially filed motion papers that included an unsworn version of Claimant's affidavit, and did not contain a proposed claim. These documents were subsequently provided to the court and Defendant's counsel, however, and Defendant's counsel conceded during oral argument that its objections against granting the motion had been adequately addressed.

Therefore, based upon the documents before me and upon oral arguments presented by counsel, and upon reviewing and balancing all of the factors enumerated in CCA § 10(6), I find that they weigh in favor of granting Claimant's application.

Accordingly, it is hereby:

ORDERED, that Claimant's motion for permission to file a late claim in this matter is granted. Claimant is directed to file and serve a claim identical to the proposed claim provided in support of this motion, and to do so in conformance with the requirements of CCA §§ 10, 11, and 11-a within sixty (60) days after this Decision and Order is filed.

April 3, 2003
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims