New York State Court of Claims

New York State Court of Claims

CAMPBELL v. THE STATE OF NEW YORK, #2005-033-167, Claim No. None, Motion No. M-70732


Case Information

JUDITH A. CAMPBELL, as Administratrix of the Goods, Chattels and Credits which were of JAMES R. CAMPBELL, Deceased, and JUDITH A. CAMPBELL, Individually
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):

James J. Lack
Claimant’s attorney:
Rosenberg, Minc, Falkoff & Wolff, LLPBy: Peter D. Rosenberg, Esq.
Defendant’s attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Ross N. Herman, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 21, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


This is a motion by Judith A. Campbell (hereinafter “movant”), as Administratrix of the Goods, Chattels and Credits which were of James R. Campbell, Deceased (hereinafter “decedent”) to renew a motion pursuant to CPLR 2221[1] previously decided by this Court by a decision and order filed on September 6, 2005 (M-70093). As previously noted in the Court’s prior decision, the case relates to an alleged medical malpractice occurring on November 10, 2004. The alleged acts of malpractice occurred at University Hospital at Stony Brook, New York.

By her previous motion, movant sought permission to file a late claim pursuant to Court of Claims Act §10(6). The motion was denied. This Court found that movant failed to show a meritorious cause of action. Movant’s cause of action is for medical malpractice. The Court determined that a physician’s affidavit was necessary for movant to show a meritorious cause of action and movant’s papers did not include an affidavit.

Rather than consider the motion as one to renew, the Court will consider the motion as a motion to file a late claim pursuant to Court of Claims Act §10(6).[2]

In order to determine whether to grant a timely made application for permission to file a late claim, the Court must consider, among any other relevant factors, the six statutory factors set forth in Court of Claims Act §10(6):

(1) whether the delay in filing the claim was excusable;

(2) whether the State had notice of the essential facts constituting the claim;

(3) whether the State had an opportunity to investigate the circumstances underlying the claim;

(4) whether the claim appears to be meritorious;

(5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and

(6) whether the movant has another available remedy.

In the prior decision, this Court made determinations as to these factors. The Court will not go through each of these factors again since the only aspect to change from movant’s initial motion is the inclusion of a physician’s affirmation to show that movant claim has merit.

To review, the Court has found that movant had no excuse for her lateness; it was unclear as to whether claimant had an alternate remedy; defendant had notice of the essential facts and an opportunity to investigate; and there is no substantial prejudice to the State.

While the presence or absence of any one of the six factors is not dispositive, (see Bay Terrace Coop. Section IV v New York State Employees’ Retirement System Policemen’s and Firemen’s Retirement System, 55 NY2d 979), the most critical factor always is the apparent merit of the proposed claim. The movant need only establish that the proposed claim is not patently groundless, frivolous or legally defective and there is reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). If a movant cannot meet this low threshold and the claim is patently without merit it would be meaningless and futile for the Court to grant the application even if all the other factors in Court of Claims Act §10(6) weighed in favor of the movant’s request.

Movant submits a physician’s Affirmation with the present motion. The Affirmation supports movant’s allegation of medical malpractice.

The Court is satisfied that the claim is meritorious. Movant has supplied an Affirmation of a doctor which opines that defendant has departed from good and accepted medical practices.

In conclusion, the majority of factors favor movant. Therefore, movant’s application to file a late claim is granted. Movant shall serve and file the proposed claim within forty-five (45) days of the filing date of this decision and order in accordance with §§10, 11 and 11-a of the Court of Claims Act.

December 21, 2005
Hauppauge, New York

Judge of the Court of Claims

[1].The following papers have been read and considered on movant’s motion: Notice of Motion dated September 21, 2005 and filed September 26, 2005; Affirmation in Support of Peter D. Rosenberg, Esq. with annexed Exhibits dated September 21, 2005 and filed September 26, 2005; Affirmation in Opposition of Ross N. Herman, Esq. dated October 3, 2005 and filed October 7, 2005; Reply Affirmation of Peter D. Rosenberg, Esq. dated October 6, 2005 and filed October 11, 2005.
[2].The Court is taking this step because the motion to renew based upon new facts is unnecessary. First, the facts are not new and could have been presented with the original motion. As such, the instant motion is actually a motion to reargue, which would be denied (Matthews v New York City Housing Authority, 210 AD2d 205). However, movant would still have the right to file a new motion to file a late claim. Therefore, in the interests of judicial economy, the Court will consider this motion as an application to file a late claim.