New York State Court of Claims

New York State Court of Claims

OLIVA v. THE STATE OF NEW YORK, #2008-033-286, Claim No. None, Motion No. M-74267


Motion for leave to file late claim granted.

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:
Davis & Hersh, LLPBy: Cary M. Greenberg, Esq.
Defendant’s attorney:
Andrew M. Cuomo, New York State Attorney GeneralBy: Mary Y.J. Kim, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 8, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


This is a motion brought by Aura Oliva and Rufino Oliva (hereinafter "movants") due to the alleged medical malpractice of the defendant, the State of New York (hereinafter “State”). The alleged malpractice occurred between September 14, 2006 and September 18, 2006, at University Hospital at Stony Brook, Stony Brook, New York.

Movants seek permission to file a late claim[1] 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 serve and file 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 date of this Decision and Order in accordance with §§10, 11 and 11-a of the Court of Claims Act.

April 8, 2008
Hauppauge, New York

Judge of the Court of Claims

[1].The following papers have been read and considered on movants’ motion: Notice of Motion to File Late Notice of Claim dated November 26, 2007 and filed November 28, 2007; Attorney’s Affirmation in Support of Cary M. Greenberg, Esq. with annexed Exhibits A-E dated November 26, 2007 and filed November 28, 2007; Affidavit of Rufino Oliva sworn to November 16, 2007 and filed November 28, 2007; Affirmation in Opposition of Mary Y.J. Kim, Esq. dated January 7, 2008 and filed January 9, 2008; Reply Affirmation of Cary M. Greenberg, Esq. dated January 18, 2008 and filed January 22, 2008.
[2].Movants mischaracterize the motion as one to seek permission to file a late Notice of Intention. However, Court of Claims Act §10(6) grants permission to file a late claim.