New York State Court of Claims

New York State Court of Claims

LIRIANO v. STATE OF NEW YORK, #2007-039-052, , Motion No. M-73645


Synopsis



Case Information

UID:
2007-039-052
Claimant(s):
FRANCIS LIRIANO
Claimant short name:
LIRIANO
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
M-73645
Cross-motion number(s):

Judge:
JAMES H. FERREIRA
Claimant’s attorney:
Francis Liriano, pro se
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Glenn KingAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 4, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Francis Liriano (hereinafter movant) seeks an order from the Court granting him permission to file a late claim. It is well settled that “[t]he Court of Claims is vested with broad discretion to grant or deny an application for permission to file a late claim” (Matter of Brown v State of New York, 6 AD3d 756, 757 [2004]). The Court’s denial of such an application will not be disturbed “where ‘the excuse offered for the delay is inadequate and the proposed claim is of questionable merit’” (id., quoting Matter of Perez v State of New York, 293 AD2d 918, 919 [2002]). When deciding whether to grant an application to file a late claim, the court is required to consider

“among other factors, whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy” (Court of Claims Act § 10 [6]).

“While the absence of an acceptable excuse is not necessarily fatal to an application for leave to serve a late notice of claim (citation omitted), its absence in combination with other factors may serve as a basis for denying the application” (Saafir v Metro-North Commuter Railroad Co., 260 AD2d 462, 463 [1999], lv denied 93 NY2d 816 [1999]).


In opposition to the motion, the State (hereinafter defendant) concedes that it had notice of the essential facts constituting the claim, that it had a reasonable opportunity to investigate the circumstances underlying the claim, and that it would not be prejudiced by the late filing of the claim. However, defendant opposes the motion on the grounds that movant has not offered a reasonable excuse for his delay in filing the claim or established the merit of his proposed claim. The Court agrees.

Movant offers, among other things, his own affidavit and a proposed claim in support of the instant application. Movant alleges that on July 27, 2005, while undergoing surgery for the purpose of removing a skin excision from his left earlobe, defendant wrongfully removed skin from the left side of movant’s neck, resulting in a deformity to his neck. The Court notes in the first instance that movant has not provided the Court with any medical evidence in support of his claim for medical malpractice (see Matter of Gonzalez v State of New York, 299 AD2d 675, 676 [2002]; Matter of Perez v State of New York, 293 AD2d 918, 919 [2002]; Matter of P.A. v State of New York, 277 AD2d 671, 672 [2000]; compare Matter of Hughes v State of New York, 25 AD3d 800, 800 [2006]). Nor has movant set forth a reasonable excuse for his delay of almost two years in bringing a claim other than to attribute the delay to the fact that he only speaks Spanish and was therefore unaware of the statutory requirements for commencement of a claim (compare Jomarron v State of New York, 23 AD3d 527, 528 [2005]; see also Quinn v Manhattan & Bronx Surface Tr. Operating Auth., 273 AD2d 144 [2000]). Based upon the foregoing, the Court concludes that movant’s application to file a late claim must be denied.

Accordingly, it is hereby ordered that M-73645 is denied.

January 4, 2008
Albany, New York

HON. JAMES H. FERREIRA
Judge of the Court of Claims


Papers Considered
:
  1. Notice of Motion dated May 27, 2007;
  2. Affidavit in Support of Motion to File a Late Claim sworn to on May 29, 2007 with exhibits;
  3. Affirmation in Opposition to Claimant’s Motion to File a Late Claim dated July 26, 2007; and
  4. Affidavit in Reply to Affirmation in Opposition sworn to on August 28, 2007.