New York State Court of Claims

New York State Court of Claims

SOLOMON v. THE STATE OF NEW YORK, #2009-010-041, Claim No. NONE, Motion No. M-77227


Late claim application granted.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Terry Jane Ruderman
Claimant’s attorney:
SILBERSTEIN, AWAD & MIKLOS, P.C.By: Jennifer M. Spina, Esq.
Defendant’s attorney:
Attorney General for the State of New YorkBy: Dian Kerr McCullough, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 1, 2009
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1-3 were read and considered by the Court on movant’s late claim application:
Notice of Motion, Attorney’s Supporting Affidavit and Exhibits............................1

Attorney’s Affirmation in Opposition......................................................................2

Attorney’s Reply Affidavit and Exhibit...................................................................3

The proposed claim alleges that during movant’s incarceration at Bedford Hills and Taconic Correctional Facilities, defendant committed medical malpractice in its failure to timely and properly diagnosis movant with cervical cancer.

The determination of a motion for leave to file a late claim requires the Court to consider, among other relevant factors, the six factors set forth in Subdivision 6 of Section 10 of the Court of Claims Act: (1) whether the delay in filing the claim 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 claim appears to be meritorious; (5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and (6) whether the movant has another available remedy.

The Court has considered the above six factors. While the movant has not presented a valid excuse for the delay (see Erca v State of New York, 51 AD2d 611, affd 42 NY2d 854), the presence or absence of any one factor is not determinative (see Bay Terrace Coop. Section IV v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, 55 NY2d 979). Also, defendant has failed to show how the delay has caused defendant to be substantially prejudiced and deprived of the opportunity to timely investigate the circumstances underlying the claim (see Matter of Godoy v Nassau Health Care Corp., 49 AD3d 541, 542 [16-month delay did not prejudice defendant where doctor’s affirmation and attached medical records indicated a departure from accepted medical practice]; Cifuentes v New York City Health & Hosps. Corp., 43 AD3d 385, 386 [where malpractice is apparent from an independent review of the medical records, those records constitute actual notice of the pertinent facts]).

The most significant factor to be considered is the appearance of merit of the proposed claim. Unlike a party who has timely filed a claim, a party seeking to file a late claim has the heavier burden of demonstrating that the claim appears to be meritorious (see Nyberg v State of New York, 154 Misc 2d 199; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). Here, the movant submitted her medical records maintained by the facilities during her incarceration and an affirmation of a physician who concluded from a review of those medical records that there had been a departure from accepted medical practice. The Court finds that movant has demonstrated an appearance of merit of her claim and there is an absence of substantial prejudice to defendant (see Matter of Chambers v Nassau County Health Care Corp., 50 AD3d 1134 [medical records detailed relevant facts attributable to malpractice and no showing of any substantial prejudice]; Greene v New York City Health & Hosps. Corp., 35 AD3d 206 [no prejudice attributable to delay where defendant was in possession of medical records and doctors had not been shown to be unavailable]). It is noted that the appearance of merit is limited to this Court’s ruling on the motion and that a heavier burden of proof rests upon movant to prevail at trial.

Upon consideration of all the factors, the Court finds that movant has made a sufficient showing to warrant granting her application despite the possibility of another available remedy (see Matter of Smith v State of New York, 63 AD3d 1524). Accordingly, the application is GRANTED and movant shall, within 45 days of this filed-stamped Decision and Order, serve and file a claim in the same form and substance as the proposed claim, and in accordance with the Court of Claims Act.

December 1, 2009
White Plains, New York

Judge of the Court of Claims