New York State Court of Claims

New York State Court of Claims

ANTINORA v. THE STATE OF NEW YORK, #2007-033-229, Claim No. None, Motion No. M-72396


Synopsis



Case Information

UID:
2007-033-229
Claimant(s):
KELLI ANTINORA and JOHN ANTINORA
Claimant short name:
ANTINORA
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-72396
Cross-motion number(s):

Judge:
James J. Lack
Claimant’s attorney:
Levine & GrossmanBy: Mary-Rita Wallace, Esq.
Defendant’s attorney:
Andrew M. Cuomo, New York State Attorney GeneralBy: Ross N. Herman, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 10, 2007
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a claim brought by Kelli Antinora and John Antinora (hereinafter "movants") due to the alleged medical malpractice of the defendant, the State of New York (hereinafter “State”). The alleged medical malpractice occurred between June 12, 2003 and January 6, 2005.

Movants seek permission to file a late claim against the State of New York pursuant to Court of Claims Act §10(6)[1].

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 movants’ application and, therefore, grants permission to file a late claim (Jomarron v State of New York, 23 AD3d 527). Movants are 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.


January 10, 2007
Hauppauge, New York

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




[1].The following papers have been read and considered on movants’ motion: Notice of Motion dated October 11, 2006 and filed October 13, 2006; Affirmation of Mary-Rita Wallace, Esq. with annexed Exhibits A-J dated October 11, 2006 and filed October 13, 2006; Affirmation in Opposition to Motion for Leave to File Late Claim of Ross N. Herman, Esq. with annexed Exhibits 1-2 dated October 31, 2006 and filed November 2, 2006.