New York State Court of Claims

New York State Court of Claims

LEE v. THE STATE OF NEW YORK, #2009-033-329, Claim No. None, Motion No. M-75986


Synopsis



Case Information

UID:
2009-033-329
Claimant(s):
SHU YING LEE, AS ADMINISTRATRIX OF THE ESTATE OF KITMAN LEE
Claimant short name:
LEE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-75986
Cross-motion number(s):

Judge:
James J. Lack
Claimant’s attorney:
Dankner & Milstein, P.C.By: Adam B. Kaufman, Esq.
Defendant’s attorney:
Andrew M. Cuomo, New York State Attorney GeneralBy: Albert E. Masry, 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 brought by Shu Ying Lee, as Administratrix of the Estate of Kitman Lee (hereinafter "movant") due to the alleged medical malpractice of the defendant, the State of New York (hereinafter “State”). The alleged malpractice occurred between March 31, 2007 and July 25, 2007.

Movant seeks permission to file a late claim against the State of New York pursuant to Court of Claims Act §10(6)[1].

In determining a motion seeking permission to file a late claim, the Court must consider the following six enumerated factors listed in Court of Claims Act §10(6): (1) whether the delay in filing 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 the movant has another available remedy; and (6) whether the claim appears to be meritorious. The Court in the exercise of its discretion balances these factors, and, as a general rule, the presence or absence of any one factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees’ Retirement System Policemen’s and Firemen’s Retirement System, 55 NY2d 979).

The Court has reviewed the parties’ papers in support of and in opposition to the motion.

Based on the foregoing, the Court concludes that the statutory factors favor movant’s application and, therefore, grants permission to file a late claim (Jomarron v State of New York, 23 AD3d 527). Movant is directed to serve and file the proposed claim within forty-five (45) days of the filing date of this Decision and Order in accordance with §§10, 11 and 11-a of the Court of Claims Act.


March 24, 2009
Hauppauge, New York

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




[1].The following papers have been read and considered on movant’s motion: Notice of Motion dated December 5, 2008 and filed December 15, 2008; Affirmation in Support of Adam B. Kaufman, Esq. with annexed Exhibits A-G dated December 5, 2008 and filed December 15, 2008; Affirmation in Opposition of Albert E. Masry, Esq. dated December 31, 2008 and filed January 5, 2009; Reply Affirmation of Adam B. Kaufman, Esq. with annexed Exhibit A dated January 9, 2009 and filed January 16, 2009.