New York State Court of Claims

New York State Court of Claims

RUSSO v. THE STATE OF NEW YORK, #2007-009-031, Claim No. NONE, Motion Nos. M-72800, M-73403


Synopsis


Claimant’s application for late claim relief on behalf of her infant son was denied as unnecessary.

Case Information

UID:
2007-009-031
Claimant(s):
IN THE MATTER OF SARAH RUSSO f/b/o WARREN D. TELLEON
Claimant short name:
RUSSO
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-72800, M-73403
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
DRISCOLL LAW OFFICE
BY: Margaret M. Driscoll, Esq.,Of Counsel.
Defendant’s attorney:
HON. ANDREW M. CUOMO
ATTORNEY GENERAL
BY: Patrick F. MacRae, Esq.,Of Counsel.
Third-party defendant’s attorney:

Signature date:
October 1, 2007
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, Sarah Russo, has brought this application seeking permission to serve and file a late claim. A second motion seeking the identical relief has also been brought by claimant. For purposes of judicial economy, both applications will be considered herein.

The following papers were considered by the Court in connection with these motions:
Notice of Motion, Affidavit of Margaret M. Driscoll, Esq., with Exhibits (including Affidavit of Sarah Russo) (M-72800) 1,2


Affirmation in Opposition, Memorandum of Law (M-72800) 3,4


Reply Affidavit (M-72800) 5

Notice of Motion, Affidavit of Margaret M. Driscoll, Esq., with Exhibits (including Affidavit of Sarah Russo as Exhibit B) (M-73403) 6,7

According to the papers submitted herein, claimant Sarah Russo seeks permission to serve and file a late claim[1] on behalf of her infant son Telleon D. Warren (Motion No. M-73403), based upon allegations of medical malpractice occurring at University Hospital in Syracuse, New York, from June 29, 2006 through August 2, 2006.

After its review of the submitted papers, the Court makes the following observations and findings:

First of all, the two separate motions brought by claimant are virtually identical, except for the name of the infant on whose behalf each application has been submitted. It appears that the correct name of the infant is Telleon D. Warren, as set forth in Motion No. M-73403.

Secondly, it appears that the first application (Motion No. M-72800) was brought pursuant to General Municipal Law § 50(e). Late claim applications in the Court of Claims, however, are governed by § 10(6) of the Court of Claims Act. Although reference has been made by claimant to § 10(6) in her second application (M-73403), it appears that the arguments by counsel in that application are still based upon General Municipal Law § 50(e), and not § 10(6) of the Court of Claims Act.

Thirdly, and most significantly, it appears that the person on whose behalf these applications have been brought, Telleon D. Warren, is an infant (whose date of birth is listed as January 3, 1990 in claimant’s “Notice of Claim”). If Telleon D. Warren is in fact an infant, the time within which a claim may be instituted on his behalf is tolled, and may be presented within two years after the legal disability has been removed, pursuant to the provisions of § 10(5) of the Court of Claims Act. Since the time within which to present a claim is tolled by § 10(5), a late claim application pursuant to § 10(6) is not required, and the claim may be presented without any prior Court approval as permitted by § 10(5).[2]

Based on the foregoing, therefore, this Court need not consider these applications for late claim relief under § 10(6) of the Court of Claims Act. As set forth above, the infancy of Telleon D. Warren has tolled all limitation periods, and permission to file a late claim on his behalf is therefore unnecessary, as long as the service and filing of the claim is made no later than two years following the removal of the disability (Boland v State of New York, 30 NY2d 337; Leibowitz v State of New York, 82 Misc 2d 424; Court of Claims Act § 10[5]).

It is therefore

ORDERED, that both Motion No. M-72800 and Motion No. M-73403 are hereby DENIED, without prejudice, as unnecessary.


October 1, 2007
Syracuse, New York

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




[1]. In the various papers submitted, claimant makes reference to both a “Notice of Intention to File a Claim” and a “Notice of Claim”. Section 10(6) of the Court of Claims Act does not confer any authority on the Court to permit the late service of a Notice of Intention to File a Claim. (Harter v State of New York, Ct Cl, November 28, 2006, Midey, J., Claim No. None, Motion No. M-71990 [UID #2006-009-067]). Unpublished decisions and selected orders of the Court of Claims are available via the Internet at http://www.nyscourtofclaims.state.ny.us/decisions. Furthermore, there is no such document as a “Notice of Claim” recognized under the Court of Claims Act, and the Court therefore has interpreted these applications as one seeking permission to serve and file a late “Claim”.
[2]. Any derivative or individual claim of Sarah Russo, the infant’s mother, is not entitled to the benefits of the tolling provisions of § 10(5), and therefore late claim relief under § 10(6) would be required for any such claim. The Court has reviewed the proposed claim submitted with these motions, however, and notes that no such derivative claim has been asserted.