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
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.