New York State Court of Claims

New York State Court of Claims

CAMMERATTA v. THE STATE OF NEW YORK, #2008-033-306, Claim No. None, Motion No. M-74876


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:
Law Office of Catherine SammartinoBy: Catherine Sammartino, 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:
September 22, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


This is a motion brought by Adrienne and Joseph Cammeratta (hereinafter “movants”) for permission to file a late claim[1] pursuant to Court of Claims Act §10(6) due to the alleged medical malpractice of the defendant, the State of New York (hereinafter “State”). The alleged malpractice occurred between April 2006 and July 2007.

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 timely serve a 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.

The Court will not allow those causes of action against the individual defendants. The Court of Claims’ jurisdiction is limited to those causes of action which are brought against the State of New York for money damages (NYS Constitution Art. VI §9).

Since movants are seeking permission to file a late claim in a medical malpractice action, they must include a physician’s Affidavit in support of their application. This Affidavit is necessary to establish the allegations of deviations from accepted standards (see Jolley v State of New York, 106 Misc 2d 550; Favicchio v State of New York, 144 Misc 2d 212). While a physician’s Affirmation has been included in the moving papers, it is defective. The Affirmation is neither sworn to nor affirmed pursuant to CPLR 2106. Thus, the Court must treat the Affirmation as a nullity. The need for a physician’s Affidavit is a well established requirement (see Colson v State of New York, 115 Misc 2d 402; Schreck v State of New York, 81 AD2d 882; Matter of Edwards v State of New York, 119 Misc 2d 355, 357). Thus, the Court must deny movants’ request to file a late claim for medical malpractice.

Based on the foregoing, the Court concludes that the statutory factors do not favor movants’ application and, therefore, denies movants’ motion.

September 22, 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 dated April 18, 2008 and filed April 28, 2008; Affidavit in Support of Catherine Sammartino, Esq. with annexed Exhibit dated April 2, 2008 and filed April 28, 2008; Affidavit in Support of Adrienne Cammaratta sworn to January 4, 2008 and filed April 28, 2008; Affirmation in Support of George Ruggiero, D.O. dated February 27, 2008 and filed April 28, 2008; Affirmation in Opposition of Mary Y.J. Kim, Esq. dated May 20, 2008 and filed May 22, 2008.