New York State Court of Claims

New York State Court of Claims

VALDES v. THE STATE OF NEW YORK, #2008-033-323, Claim No. None, Motion Nos. M-75289, M-75752


Synopsis



Case Information

UID:
2008-033-323
Claimant(s):
JORGE VALDES
Claimant short name:
VALDES
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-75289, M-75752
Cross-motion number(s):

Judge:
James J. Lack
Claimant’s attorney:
Jorge Valdes, Pro Se
Defendant’s attorney:
Andrew M. Cuomo, New York State Attorney GeneralBy: Saul Aronson, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 24, 2008
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a motion brought by Jorge Valdes (hereinafter "movant") due to the alleged dental malpractice of the defendant, the State of New York (hereinafter “State”). The alleged malpractice occurred between February 2008 and March 2008.

Movant seeks permission to file a late claim against the State of New York pursuant to Court of Claims Act §10(6) and for permission to proceed as a poor person (M-75289)[1]. In addition, movant seeks permission to file a late claim against individual employees of defendant (M-75752)[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 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 motions.

The Court concludes that the statutory factors favor movant’s application (M-75289) and, therefore, grants permission to file a late claim (Jomarron v State of New York, 23 AD2d 527).

The Court of Claims is established by NY Const. Art. VI, §9, which states, in relevant part that "[t]he court shall have jurisdiction to hear and determine claims against the state or by the state against the claimant or between conflicting claimants as the legislature may provide." The Court of Claims is limited to awarding money damages against the State of New York (Matter of Silverman v Comptroller of The State of New York, 40 AD2d 225). This Court has no jurisdiction over the individual defendants named in movant’s second motion.

Insofar as this motion also seeks reduction for the filing fee applicable in this Court pursuant to CPLR 1101 (f), such application is premature. Movant should make the application anew when he files the now permitted claim with the Court. Accordingly, the motion for poor person status is denied without prejudice.

Based upon the foregoing, movant’s motion for a late claim under motion number (M-75289) is granted. Movant is directed to serve the Attorney General and file the proposed claim in the Clerk’s Office 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. Movant’s motion for a late claim under motion number (M-75752) is denied.


December 24, 2008
Hauppauge, New York

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




[1].The following papers have been read and considered on movant’s motion (M-75289): Notice of Motion for Leave to File a Late Claim and For Permission to Sue as a Poor Person dated July 17, 2008 and filed July 21, 2008; Affidavit in Support of Notice of Motion for Leave to File a late Claim and for Permission to Sue as a Poor Person of Jorge Valdes with annexed Exhibits A-C sworn to July 17, 2008 and filed July 21, 2008; Affidavit in Support of Motion for Permission to Sue as a Poor Person of Jorge Valdes sworn to July 17, 2008 and filed July 21, 2008; Affirmation in Opposition to Motion to Late File of Saul Aronson, Esq. dated August 15, 2008 and filed August 19, 2008.
[2].The following papers have been read and considered on movant’s motion (M-75752): Notice of Motion for leave to File a Late Claim and for Permission to Sue as a Poor Person undated and filed October 15, 2008; Affidavit in Support of Notice of Motion for Leave to file a late Claim and for Permission to Sue as a Poor Person of Jorge Valdes with annexed Exhibits A-C sworn to October 9, 2008 and filed October 15, 2008; Affirmation in Opposition to Motion to Late File of Saul Aronson, Esq. dated November 19, 2008 and filed November 19, 2008.