New York State Court of Claims

New York State Court of Claims

SPEARS v. THE STATE OF NEW YORK and DOWNSTATE MEDICAL CENTER, #2007-038-514, , Motion No. M-72588


Synopsis



Case Information

UID:
2007-038-514
Claimant(s):
KISEEM SPEARS, an infant, by his mother and Natural guardian, LA KEISHA HAILE, and by LA KEISHA HAILE, Individually
Claimant short name:
SPEARS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK and DOWNSTATE MEDICAL CENTER
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
M-72588
Cross-motion number(s):

Judge:
W. BROOKS DEBOW
Claimant’s attorney:
BARTON BARTON & PLOTKIN LLPBy: Michael J. Hurwitz, Esq.
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Ross N. Herman, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 21, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant La Keisha Haile, individually and as mother and natural guardian of Kisseem Spears, seeks permission to file a late claim pursuant to Court of Claims Act § 10 (6). She seeks to file a claim alleging medical malpractice in relation to the pre-natal care and delivery of her infant son by defendant at Downstate Medical Center. The malpractice is alleged to have occurred on August 29, 1997, the infant’s date of birth. The motion to file a late claim will be denied, for the following reasons.

At the age of nine years old, claimant Kiseem Spears remains under the legal disability of infancy (see CPLR 105 [j]), and thus, his time within which to file and serve his claim as of right has not expired (see Court of Claims Act § 10 [5]; McKenzie v State of New York, Motion No. M-71968, Schweitzer, J., [Sept. 22, 2006]). Thus, the infant claimant does not need permission to file a late claim (see Boland v State of New York, 30 NY2d 337, 343 [1972]; Brown v State of New York, UID # 2006-009-027, Motion No. M-71127, Midey, Jr., J. [May 8, 2006]; DuPont v State of New York, #2003-018-223, Motion No. M-66294, Fitzpatrick, J. [May 28, 2003]), as he may file and serve his claim as of right within two years after the disability is removed (see Boland v State of New York, supra at 343).

To the extent the motion for late filing seeks permission to file a claim on behalf of claimant La Keisha Haile, individually, for damages flowing from the injury to her son as a result of defendant’s alleged medical malpractice, such a claim is beyond the statute of limitations period of two years and six months from the date of accrual (see CPLR 214-a). Even if it is determined that the accrual date was October 29, 1997, the last date of treatment, the claim of the adult claimant expired on April 29, 2000. Accordingly, the motion for permission to file a late claim on behalf of La Keisha Haile, individually, which was not made until November 2006, more than six years after the expiration of the applicable statute of limitations, cannot be granted (see Court of Claims Act § 10 [6] [it is within the court’s discretion to grant a motion for late filing “at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules”]).

Motion No. M-72588 is DENIED.









March 21, 2007
Albany, New York

HON. W. BROOKS DEBOW
Judge of the Court of Claims



Papers considered:


(1) Notice of Motion, dated November 22, 2006;

(2) Affirmation of Michael J. Hurwitz, Esq., dated November 22, 2006, with proposed claim;

(3) Affidavit of La Kiesha [sic] Haile, sworn to November 22, 2006;

(4) Affirmation in Opposition of Ross N. Herman, AAG, dated December 7, 2006,

with exhibits A-G;

(5) Correspondence of Ross N. Herman, AAG, dated December 8, 2006.