New York State Court of Claims

New York State Court of Claims

UPSHER v. STATE OF NEW YORK, #2008-042-520, Claim No. NONE, Motion No. M-75180


Synopsis


This is a motion brought before the court by claimant for permission to serve and file a late claim pursuant to Court of Claims Act § 10 (6). The State consents to the motion, the application is timely brought and the State appears not to have been substantially prejudiced by the delay. Accordingly, claimant’s motion for permission to serve and file a late claim is granted.

Case Information

UID:
2008-042-520
Claimant(s):
STEVEN UPSHER
Claimant short name:
UPSHER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-75180
Cross-motion number(s):

Judge:
NORMAN I. SIEGEL
Claimant’s attorney:
TOBEROFF, TESSLER & SCHOCHET, LLPBy: DAVID TESSLER, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General of the State of New YorkBy: G. LAWRENCE DILLON, ESQ., A.A.G.
Third-party defendant’s attorney:

Signature date:
August 14, 2008
City:
Utica
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This matter comes before the court on a motion by the claimant for an order, pursuant to Court of Claims Act § 10 (6), permitting claimant to serve and file a late claim. The court has considered the following papers:
  1. Notice of Motion, filed June 30, 2008
  2. Affirmation of David A. Tessler, Esq., dated June 26, 2008
  3. Exhibits A - F, annexed to the moving papers
  4. Consent to Motion, signed by Assistant Attorney General G. Lawrence Dillon, Esq., filed July 22, 2008
___________________________________________

The underlying claim is “for negligence and Medical [sic] malpractice in the failure to appropriately test and/or refer the patient [claimant] for complaints which were caused by recto-sigmoid cancer” (Proposed Claim, Ex. A). At the time that the cause of action arose in late January, 2007, claimant was an inmate at the Mid-State Correctional Facility, being treated at the facility’s infirmary. According to the moving papers, claimant was never properly diagnosed by the defendant’s facility. Following his release in June 2007, claimant sought medical treatment on his own, was diagnosed with the aforementioned cancer in late December 2007 and advised of the diagnosis on January 14, 2008.

Court of Claims Act § 10 (6) provides, in relevant part, that:

[i]n determining whether to permit the [late] filing of a claim . . . , the court shall consider, among other factors, whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy.


The presence or absence of any one factor is not dispositive in the court's consideration of a late claim motion. (See Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979; Rice v State of New York, UID No. 2006-028-598, Claim No. NONE, Motion No. M-71150, October 18, 2006, Sise, P.J.). Additionally, the court is afforded broad discretion in its determination and consideration of the statutory factors. Matter of Gonzalez v State of New York, 299 AD2d 675; Doe v State of New York, UID No. 2004-028-512, Claim No. NONE, Motion No. M-67159, March 10, 2004, Sise, P.J.

Having reviewed the claimant's submissions and considered them in the light of the statutory factors applicable to a motion for permission to file a late claim, the court is satisfied that the requested relief is appropriate in this case.

In particular, it is worth noting that the State consents to the motion, the application is timely brought, the State has not been substantially prejudiced by the delay, and the claim appears to be meritorious.

Accordingly, claimant's motion for permission to serve and file a late claim is hereby granted. Claimant is directed to serve a Claim upon the Attorney General and to file same with proof of service, with the Chief Clerk of the Court of Claims, all within forty-five (45) days from the date of filing of this decision and order in the Clerk's office, with such service and filing to be in accordance with the Court of Claims Act.


August 14, 2008
Utica, New York

HON. NORMAN I. SIEGEL
Judge of the Court of Claims