New York State Court of Claims

New York State Court of Claims

JULIE HERNKIND v. THE STATE OF NEW YORK, #2005-029-521, Claim No. NONE, Motion No. M-70502


Case Information

JULIE HERNKIND The caption has been amended sua sponte to reflect the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended sua sponte to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Claimant's attorney:
Julie Hernkind, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New YorkBy: Elyse J. Angelico, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 29, 2005
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


This motion, by a pro se movant, seeks permission to file a late claim in accordance with Court of Claims Act § 10 (6).

Movant has submitted a notice of intention to file a claim, not a proposed claim as required by Court of Claims Act §10 (6). However, as the notice of intention meets the requirements of a claim (except for stating the amount of her damages), I will consider movant's notice of intention to be a proposed claim. The motion papers allege that on March 29, 2005 movant was taken from Bedford Hills Correctional Facility (hereinafter Bedford Hills) to Westchester Medical Center for a laminectomy of the spine. Movant alleges that after she returned to Bedford Hills she did not receive proper medical care and developed an infection resulting in damages.

In determining whether to grant a motion to file a late claim, Subdivision 6 of Section 10 of the Court of Claims Act sets forth six factors that should be considered, although other factors deemed relevant may also be taken into account (Plate v State of New York, 92 Misc 2d 1033). The movant need not satisfy every statutory element, however, the burden rests with her to persuade the Court to grant her late claim motion (see Matter of Flannery v State of New York, 91 Misc 2d 797; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1).

The first factor to be considered is whether the delay in filing the claim is reasonable. Movant has proffered two excuses for the delay in filing the claim: 1) she was unable to get her claim notarized timely and 2) she was recovering from an overdose of prescribed medication.

Defense counsel has submitted a memorandum from the Deputy Superintendent for Program Services to the inmate population at Bedford Hills establishing that notary services are available on a scheduled basis and even on an emergency procedure basis (Exhibit B attached to Affirmation in Opposition). Therefore, the Court finds this excuse to be unreasonable. Additionally, the fact that a movant has alleged she has been hospitalized or was convalescing for the entire 90-day period in which a claim could have been timely filed is inadequate (Goldstein v State of New York, 75 AD2d 614; Rios v State of New York, 67 AD2d 744). Here, movant asserts she was convalescing from an overdose of prescription medication. However, she has failed to provide medical records or a physician's affidavit indicating she was unable to timely file a claim. This excuse is also unreasonable.

The next factors to be addressed - whether the defendant had notice of the essential facts constituting the claim, whether the defendant had an opportunity to investigate the circumstances underlying the claim, and whether the failure to file or serve a timely claim or to serve a notice of intention resulted in substantial prejudice to the defendant - are interrelated and will be considered together. The defendant neither claims lack of notice, lack of opportunity to investigate, nor that it was substantially prejudiced by the delay in filing a claim. The defendant cannot use its silence as a shield against an allegation that it had notice of the essential facts constituting the claim (Cole v State of New York, 64 AD2d 1023). These factors, therefore, weigh in movant's favor.

Also to be considered is whether the claim has the appearance of merit, for it would be futile to permit a defective claim to be filed, subject to dismissal, even if other factors tend to favor the request (Rosenhack v State of New York, 112 Misc 2d 967; Flaherty Corp. v State of New York [New York State Parks & Recreation Div.], 102 Misc 2d 438). It is movant's burden to show that the claim is not patently groundless, frivolous or legally defective, and, based upon the entire record, including the proposed claim and any affidavits, that there is reasonable cause to believe that a valid cause of action exists. While this standard clearly places a heavier burden upon a party who has filed late than upon one whose claim is timely, it does not, and should not, require a movant to definitively establish the merit of the claim or overcome all legal objections thereto before the Court will permit the movant to file a late claim (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1).

At this stage of the proceeding, it should be noted, I generally take as true factual allegations of a movant. Based upon the entire record, I find that the cause of action has the appearance of merit. Movant need only establish the appearance of merit; she need not prove a prima facie case at this stage of the proceedings.

It also appears that movant does not have any alternate remedy.

In accordance with the foregoing, the Court finds that the preponderance of factors considered weigh in movant's favor. The mix of circumstances presented by this case fall well within the remedial purposes of the amendment to the Court of Claims Act enacted in 1976 (Chapter 280), which was designed to vest in the Court of Claims broader discretion than previously existed to permit late filing, indicating a strong concern that litigants with meritorious claims be afforded their day in court (Calzada v State of New York, 121 AD2d 988; (Plate v State of New York, 92 Misc 2d 1033). Movant has provided ample basis for a favorable exercise of this Court's discretion to grant her leave to file a late claim against the State. Therefore, within forty-five (45) days of the date of filing of this decision and order, movant shall file her proposed claim against the State with the Clerk of the Court and serve, by certified mail, return receipt requested, a copy of said proposed claim, properly verified, upon the Attorney General. In serving and filing her claim, movant is directed to follow all of the requirements of the Court of Claims Act, including § 11-a regarding the filing fee, and the Uniform Rules for the Court of Claims.

The following papers were read and considered on movant's request for permission to serve and file late claim pursuant to Court of Claims Act Section 10, Subdivision 6:

Papers Numbered

Motion and Exhibits Attached 1

Affirmation in Opposition
and Exhibits Attached 2

September 29, 2005
White Plains, New York

Judge of the Court of Claims