New York State Court of Claims

New York State Court of Claims

DOMINGO v. NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, #2009-033-328, Claim No. None, Motion No. M-75853


Synopsis



Case Information

UID:
2009-033-328
Claimant(s):
DANIEL M. DOMINGO
Claimant short name:
DOMINGO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-75853
Cross-motion number(s):

Judge:
James J. Lack
Claimant’s attorney:
Daniel M. Domingo, Pro Se
Defendant’s attorney:
Andrew M. Cuomo, New York State Attorney GeneralBy: Dewey Lee, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 24, 2009
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a motion for a late claim for damages for alleged medical malpractice suffered by Daniel M. Domingo (hereinafter “movant”). The initial allegations of movant occurred during April 2008 while he was in the custody of the New York City Department of Corrections. Movant also alleges a continued denial of pain medication while an inmate in the New York State corrections system.

Movant asks this Court to grant permission to file a late claim.[1]


In order to determine whether to grant a timely made application for permission to file a late claim, the Court must consider, among any other relevant factors, the six statutory factors set forth in Court of Claims Act §10(6):
(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 failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State;
(5) whether movant has another available remedy; and
(6) whether the claim appears to be meritorious.


Court of Claims Act §10(6) also requires that the proposed claim be included with the motion. Movant has failed to include a proposed claim with the motion[2], thus rendering the motion defective.

Based upon the foregoing, movant’s motion for permission to file a late claim is denied.


March 24, 2009
Hauppauge, New York

HON. JAMES J. LACK
Judge of the Court of Claims




[1].Movant incorrectly asks for permission to file a late notice of intention to file a claim. Court of Claims Act §10(6) only allows for permission to file a late claim.
[2].The following papers have been read and considered on movant’s motion: Notice of Motion for Permission to File a Late Notice of Intention to File a Claim dated October 22, 2008 and filed October 29, 2008; Affirmation of Dewey Lee, Esq. dated December 5, 2008 and filed December 8, 2008.