New York State Court of Claims

New York State Court of Claims

NATHANIEL v. THE STATE OF NEW YORK, #2005-016-059, Claim No. None, Motion No. M-70048


Motion for permission to file a late claim was denied as the inappropriate request for relief in case involving a legal disability and section 10.5 of the Court of Claims Act.

Case Information

SONDRAH NATHANIEL, as Administratrix of the Estate of THEOLA BLUE
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Alan C. Marin
Claimant's attorney:
Sheryl R. Menkes, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Ross N. Herman, Esq., AAG
Third-party defendant's attorney:

Signature date:
September 15, 2005
New York

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves for permission "to serve a late notice of claim"[1] on the ground that Theola Blue was under a legal disability when the claim arose ("Alzheimer's Dementia"). In the proposed claim, it is alleged that because of improper medical care provided to Ms. Blue at SUNY Downstate Medical Center from September 18 through September 27, 2001, she developed a sacral pressure ulcer "which failed to heal[,] became necrotic, caused sepsis and eventually [led] to death." Ms. Blue died on September 12, 2004 and Sondrah Nathaniel was appointed as administratrix for her estate on February 7, 2005. As to a cause of action for pain and suffering, were Ms. Blue under a legal disability --which defendant disputes -- §10.5 of the Court of Claims Act would come into play. Such section states that "[i]f the claimant shall be under legal disability, the claim may be presented within two years after such disability is removed." If Ms. Blue were under a legal disability from the time of hospital admission through the time of her death on September 12, 2004, the time to serve and file a claim pursuant to §10.5 of the Act would not have expired. Whether she was in fact under a legal disability may be tested after the service and filing of a claim -- for example, in a motion by claimant to dismiss an affirmative defense relating to timeliness or in a motion to dismiss by defendant. Thus, a request for permission to file a late claim is unnecessary.

As to a cause of action for wrongful death, which belongs to Ms. Blue's estate, §10.2 of the Act (not §10.5) is implicated. Section 10.2 provides that a claim for wrongful death must be served and filed within 90 days of appointment of an executor or administrator, but in any event, no later than two years after death.[2] In this case, a claim was not served within 90 days of Ms. Nathaniel's appointment. With regard to such cause of action, claimant may wish to move for permission to file a late claim pursuant to §10.6 of the Act, subject to any applicable statutes of limitation.

In view of the foregoing, having reviewed the parties' submissions[3], IT IS ORDERED that motion no. M-70048 be denied.

September 15, 2005
New York, New York

Judge of the Court of Claims

  1. [1]Although claimant deems her motion as one for permission to "serve a late notice of claim," her focus is on the disability of Theola Blue, and she does not directly refer to §10.6 of the Act, which governs late claims. Accordingly, the Court will not treat this motion as one made pursuant to §10.6.
  2. [2]In the alternative, a notice of intention may be served within 90 days of appointment and then a claim served and filed within two years of death.
  3. [3]The Court reviewed: claimant's notice of motion with affirmation in support, exhibit A and other undesignated exhibits; defendant's affirmation in opposition with exhibits A through E; and claimant's reply affirmation with exhibits A through P.