New York State Court of Claims

New York State Court of Claims

TURNBOUGH v. THE STATE OF NEW YORK, #2006-033-214, Claim No. None, Motion No. M-72233


Synopsis



Case Information

UID:
2006-033-214
Claimant(s):
JEROME TURNBOUGH
Claimant short name:
TURNBOUGH
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK1 1.The Court sua sponte amends the caption to read The State of New York as the only Defendant.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-72233
Cross-motion number(s):

Judge:
James J. Lack
Claimant’s attorney:
Jerome Turnbough, Pro Se
Defendant’s attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Frederick H. McGown, III, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 27, 2006
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a claim brought by Jerome Turnbough (hereinafter "movant") due to the alleged medical malpractice of the defendant, the State of New York (hereinafter “State”). The alleged medical malpractice occurred on June 24, 2004 and on July 15, 2005 at Clinton Correctional Facility in Dannemora, New York.

Movant seeks permission to file a late claim against the State of New York pursuant to Court of Claims Act §10(6)[2].

In determining a motion seeking permission to file a late claim, the Court must consider the following six enumerated factors listed in Court of Claims Act §10(6): (1) whether the delay in filing 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 failure to file and serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; (5) whether the movant has another available remedy; and (6) whether the claim appears to be meritorious. The Court in the exercise of its discretion balances these factors, and, as a general rule, the presence or absence of any one factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees’ Retirement System Policemen’s and Firemen’s Retirement System, 55 NY2d 979).

The Court has reviewed the parties’ papers in support of and in opposition to the motion.

Based on the foregoing, the Court concludes that the statutory factors favor movant’s application and, therefore, grants permission to file a late claim (Jomarron v State of New York, 23 AD3d 527). Movant is directed to serve and file the proposed claim within forty-five (45) days of the filing of this Decision and Order in accordance with §§10, 11 and 11-a of the Court of Claims Act, and to take note of the Court’s amendment of the caption.


December 27, 2006
Hauppauge, New York

HON. JAMES J. LACK
Judge of the Court of Claims




[2].The following papers have been read and considered on movant’s motion: Notice of Motion dated August 17, 2006 and filed September 5, 2006; Affidavit in Support of Motion to File a Late Claim with annexed Exhibit sworn to August 17, 2006 and filed September 5, 2006; Affirmation in Opposition of Frederick H. McGown, III, Esq. dated October 20, 2006 and filed October 20, 2006.