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
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
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.