New York State Court of Claims

New York State Court of Claims

BROWN v. THE STATE OF NEW YORK, #2006-009-027, Claim No. NONE, Motion No. M-71127


Synopsis


Claimants’ motion for late claim relief was denied as unnecessary with regard to their infant son’s claim and also denied with respect to their derivative claim based upon their failure to allege any such cause of action.

Case Information

UID:
2006-009-027
Claimant(s):
ELISSA BROWN and KARL BROWN, Individually and as Natural Parents and Guardians of JOSHUA BROWN, an Infant
Claimant short name:
BROWN
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-71127
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
LAW OFFICE OF RONALD R. BENJAMIN
BY: Ronald R. Benjamin, Esq.,Of Counsel.
Defendant’s attorney:
HON. ELIOT SPITZER
Attorney General
BY: Patrick F. MacRae, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
May 8, 2006
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimants have brought this motion seeking permission to serve and file a late claim pursuant to Court of Claims Act § 10(6). The Court has considered the following papers in connection with this application:
Notice of Motion, Attorney Affirmation, Proposed Claim, Affidavit of Elissa Brown, Memorandum of Law 1,2,3,4,5[1]

In their proposed claim, claimants have made allegations of medical malpractice attributable to the physicians and nursing staff at the State University of New York Health Science Center in connection with medical treatment provided to their infant son, Joshua Brown, between May 26, 2004 and July 8, 2004.

As set forth in the proposed claim, as well as in the supporting affidavit provided by Elissa Brown, Joshua Brown’s date of birth is May 5, 2004. Therefore, Joshua is now almost two years of age. He is clearly an infant and therefore under a legal disability as defined by CPLR § 208. Pursuant to Court of Claims Act § 10(5), if a claimant is under a legal disability, the claim may be presented within two years after the disability has been removed. Accordingly, the time within which Joshua Brown must serve and file a claim has not yet elapsed, and any application for late claim relief on his behalf is unnecessary.

In the caption of the claim, however, Elissa Brown and Karl Brown have each made reference to an individual cause of action, presumably a derivative cause of action related to the alleged medical malpractice in the treatment of their son. In her supporting affidavit (see Item 4), Elissa Brown has made mention of the economic and emotional loss suffered by her and her husband as a result of the alleged malpractice. The Court has reviewed the proposed claim submitted with this motion, however, and finds that no such derivative claim has been asserted therein.

Based upon the foregoing, therefore, it is

ORDERED, that Motion No. M-71127 is hereby DENIED, as unnecessary. To the extent that this motion intended to seek permission for the service and filing of a derivative claim on behalf of Elissa Brown and Karl Brown, the motion is also denied, without prejudice, since the proposed claim is silent as to any such cause of action.


May 8, 2006
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims




[1]. Although this motion had been adjourned at defendant’s request, defendant has not submitted any response to this motion.