New York State Court of Claims

New York State Court of Claims

HUSSAIN v. THE STATE OF NEW YORK, #2007-033-245, Claim No. None, Motion No. M-73063


Synopsis



Case Information

UID:
2007-033-245
Claimant(s):
ERUM HUSSAIN, Individually and as the Proposed Administratrix of the Estate of MUSHTAQ HUSSAIN
Claimant short name:
HUSSAIN
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-73063
Cross-motion number(s):

Judge:
James J. Lack
Claimant’s attorney:
Barton, Barton, & Plotkin, LLPBy: Michael J. Hurwitz, Esq.
Defendant’s attorney:
Andrew M. Cuomo, Attorney GeneralBy: Ross N. Herman, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 22, 2007
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a motion brought by Erum Hussain, Individually and as the Proposed Administratrix of the Estate of Mushtaq Hussain (hereinafter "movant") due to the alleged medical malpractice of the defendant, the State of New York (hereinafter “State”). The alleged malpractice occurred during the time period of April 26, 2006 up to and including May 30, 2006.

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 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 concludes movant’s motion is premature and must be denied. Movant is filing as the “proposed administratrix” and thus, is without standing before this Court. Court of Claims Act §10(2) allows a claimant to file a claim for wrongful death within 90 days of the appointment of an administratrix. In the event movant wishes to make a motion for conscious pain and suffering, she must wait until she has standing before this Court.


May 22, 2007
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 February 22, 2007 and filed March 15, 2007; Attorney’s Affirmation of Michael J. Hurwitz, Esq. with annexed Exhibits A-B dated February 20, 2007 and filed March 15, 2007; Affirmation in Opposition to Motion for Leave to File a Late Claim of Ross N. Herman, Esq. dated March 26, 2007 and filed March 27, 2007.