New York State Court of Claims

New York State Court of Claims

STEWART v. THE STATE OF NEW YORK, #2007-033-242, Claim No. None, Motion No. M-73029


Case Information

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:
The Law Offices of Daniel P. Buttafuoco & Associates, PLLCBy: James S. McCarthy, Esq.
Defendant’s attorney:
Andrew M. Cuomo, Attorney GeneralBy: Marcie K. Glasser, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 22, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


This is a claim brought by Christopher Stewart (hereinafter "movant") due to the alleged medical malpractice of the defendant, the State of New York (hereinafter “State”). The alleged malpractice occurred during a continuous course of treatment beginning September 17, 2005 and continuing through December 2005, by defendant’s employees at the State University Hospital of Stony Brook, Stony Brook, New York.

Movant seeks permission to file a late claim against the State of New York pursuant to Court of Claims Act §10(6).[1] Movant previously sought this same relief and it was granted by Decision and Order of this Court in October 2006 (M-71809; CM-71883). The Court directed movant to serve and file the proposed claim within 45 days of the filing date. Movant filed the claim with the Clerk’s Office, but failed to serve the claim upon the Attorney General’s Office. Defendant relies upon the discretion of the Court.

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 or 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 again 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 date of this Decision and Order in accordance with §§10, 11 and 11-a of the Court of Claims Act. The Court will not look kindly upon a third application by movant in this matter for the same relief.

May 22, 2007
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 February 26, 2007 and filed March 6, 2007; Affirmation of James S. McCarthy, Esq. with annexed Exhibits A-G dated February 26, 2006 (sic) and filed March 6, 2007; Affirmation of Marcie K. Glasser, Esq. with annexed Exhibit A dated March 6, 2007 and filed March 7, 2007.