New York State Court of Claims

New York State Court of Claims

SHIERTS v. THE STATE OF NEW YORK, #2009-033-343, Claim No. None, Motion No. M-76105


Synopsis



Case Information

UID:
2009-033-343
Claimant(s):
JEANNE SHIERTS, AS EXECUTRIX OF THE ESTATE OF JODIE LYNN SHIERTS, AND JEANNE SHIERTS, INDIVIDUALLY
Claimant short name:
SHIERTS
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-76105
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:
June 11, 2009
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a motion brought by Jeanne Shierts, As Executrix of the Estate of Jodie Lynn Shierts, and Jeanne Shierts, Individually (hereinafter "movant"), due to the alleged medical malpractice of the defendant, the State of New York (hereinafter “State”). The alleged medical malpractice occurred on March 31, 2007, in Stony Brook, New York.

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.


June 11, 2009
Hauppauge, New York

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




[1].The following papers were read and considered on movant’s motion: Notice of Motion dated December 30, 2008 and filed January 2, 2009; Affirmation of Adam B. Kaufman, Esq. with annexed Exhibits A-G dated December 30, 2008 and filed January 2, 2009; Affirmation in Opposition of Albert E. Masry, Esq. with annexed Exhibits A-C dated January 28, 2009 and filed January 29, 2009; Reply Affirmation of Adam B. Kaufman, Esq. with annexed Exhibits A-B dated February 6, 2009 and filed February 11, 2009.