New York State Court of Claims

New York State Court of Claims

CLAY v. THE STATE OF NEW YORK, #2008-041-027, Claim No. 115332, Motion No. M-75148


Synopsis


Claimant’s request for extension of time to file and serve claim after claimant failed to timely file and serve claim as directed by prior order permitting late filing and service of the claim pursuant to Court of Claims Act § 10 (6) is granted where underlying statute of limitations has not expired.

Case Information

UID:
2008-041-027
Claimant(s):
DANIEL CLAY
Claimant short name:
CLAY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115332
Motion number(s):
M-75148
Cross-motion number(s):

Judge:
FRANK P. MILANO
Claimant’s attorney:
DANIEL CLAYPro Se
Defendant’s attorney:
HON. ANDREW M. CUOMO
New York State Attorney GeneralBy: Saul Aronson, Esq., Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 28, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Claimant moves for an extension of time to file and serve his claim after claimant failed to timely file and serve the claim pursuant to the requirements of the Court’s prior decision and order, filed March 18, 2008, permitting late filing and service of the claim pursuant to Court of Claims Act § 10 (6). Claimant is an inmate at Clinton Correctional Facility (Clinton). The claimant alleges that on October 11, 2006, a dentist employed at Clinton by defendant left pieces of a tooth in claimant’s gum after a tooth extraction. Claimant further alleges that due to the malpractice of the dentist employed by defendant to treat claimant, and defendant’s delay in providing follow-up care and treatment, claimant suffered personal injuries and damages.

Claimant failed to either serve a timely notice of intention to file a claim on the Attorney General or to timely file and serve a claim, as required by Court of Claims Act §§ 10 and 11.

On January 22, 2008, claimant moved pursuant to Court of Claims Act § 10 (6) for permission to file a late claim and defendant opposed the motion. After balancing the factors set forth in section 10 (6), the Court granted the claimant’s motion and claimant was directed to file and serve his claim in compliance with §§ 11 and 11-a of the Court of Claims Act within sixty (60) days of the filing of the Court’s decision and order with the Clerk of the Court of Claims. The decision and order was filed with the Clerk of the Court of Claims on March 18, 2008. The claim was thus required to be filed and served on or before May 17, 2008.

Claimant filed and served his claim on June 4, 2008, more than sixty (60) days after the filing of the Court’s decision and order. Defendant has served an answer, dated July 10, 2008, raising jurisdictional defenses based upon the late filing and service.

In support of his motion, claimant states that he was unable to make timely filing and service of the claim because he was “packed up for a Court trip April 6, 2008 and I returned to Clinton on April 24, 2008. I did not get a copy of my dental records until a few days after May 7, 2008.” Claimant further asserts that on or about April 26, 2008, he was directed to provide an affirmation in a habeas corpus proceeding pending in the United States District Court and had limited time to address his two pending legal matters.

Defendant opposes the motion, arguing that the claim is “jurisdictionally barred” and that claimant has failed to provide a reasonable excuse for his failure to comply with the Court’s prior decision and order.

The Court retains jurisdiction to grant further late claim relief pursuant to Court of Claims Act § 10 (6) because the underlying dental malpractice statute of limitation of two years and six months has not expired (see Crum and Foster Ins. Co. v State of New York, 25 AD3d 643, 644 [2d Dept 2006]; Bergmann v State of New York, 281 AD2d 731, 733 [3d Dept 2001]).

In view of the claimant’s relatively short (eighteen day) delay in filing and serving the claim and having found in the Court’s prior decision and order that the proposed claim was potentially meritorious and that defendant was unlikely to suffer any prejudice as a result of claimant’s delay in timely presenting the claim, the claimant’s motion for an extension of time to file and serve the claim is granted (see Matter of Yackle v State of New York, 21 AD3d 1283 [4th Dept 2005]).

The filing and service of the claim on June 4, 2008 is deemed to have been timely pursuant to the Court’s decision and order filed March 18, 2008, subject to any objections to filing and service other than timeliness.


July 28, 2008
Albany, New York

HON. FRANK P. MILANO
Judge of the Court of Claims


Papers Considered:

  1. Notice of Motion, filed June 19, 2008;
  2. Affidavit of Daniel Clay, sworn to May 28, 2008, and annexed exhibits;
  3. Affirmation of Saul Aronson, dated July 16, 2008, and annexed exhibits.