New York State Court of Claims

New York State Court of Claims

OLSEN v. THE STATE OF NEW YORK, #2008-033-295, Claim No. None, Motion No. M-74381


Synopsis



Case Information

UID:
2008-033-295
Claimant(s):
CHARLOTTE OLSEN
Claimant short name:
OLSEN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-74381
Cross-motion number(s):

Judge:
James J. Lack
Claimant’s attorney:
Katz & Kreinces, LLPBy: Matthew R. Kreinces, 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:
June 26, 2008
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a claim brought by Charlotte Olsen (hereinafter "movant") due to the alleged medical malpractice of the defendant, the State of New York (hereinafter “State”). The alleged malpractice occurred on and between February 21, 2007 through February 28, 2007.

Movant seeks permission to file a late notice of intention to file a claim[1] against the State of New York pursuant to Court of Claims Act §10(6)[2]. This is the second application for the requested relief. Movant was previously denied permission to file a late claim (M-73894, Decision and Order filed December 13, 2007). Movant’s previous application was denied because she failed to include a physician’s affidavit in support of her application.

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 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.


June 26, 2008
Hauppauge, New York

HON. JAMES J. LACK
Judge of the Court of Claims




[1].The relief requested by Mr. Kreinces, to file a late notice of intention to file a claim, is not available anywhere in the Court of Claims Act. Court of Claims Act §10(6) affords the relief of allowing a movant to file a late claim only.
[2].The following papers have been read and considered on movant’s motion: Notice of Motion dated December 21, 2007 and filed December 28, 2007; Affirmation in Support of Matthew R. Kreinces, Esq. with annexed Exhibits A-F dated December 21, 2007 and filed December 28, 2007; Affirmation in Opposition of Mary Y.J. Kim, Esq. dated January 22, 2008 and filed January 24, 2008; Reply Affirmation of Matthew R. Kreinces, Esq. with annexed Exhibit A dated January 23, 2008 and filed January 23, 2008.