New York State Court of Claims

New York State Court of Claims

GONZALEZ v. THE STATE OF NEW YORK, #2009-033-349, Claim No. None, Motion No. M-76734


Synopsis



Case Information

UID:
2009-033-349
Claimant(s):
HEIDI NITTI and DANIEL GONZALEZ, AS CO-ADMINISTRATORS OF THE ESTATE OF WILLIAM GONZALEZ, DECEASED
Claimant short name:
GONZALEZ
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-76734
Cross-motion number(s):

Judge:
James J. Lack
Claimant’s attorney:
Waldinger Associates, P.C.By: Ellen M. Sundheimer, Esq.
Defendant’s attorney:
Andrew M. Cuomo, New York State Attorney General
Third-party defendant’s attorney:

Signature date:
September 21, 2009
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a motion[1] for a late claim for damages for the alleged wrongful death and conscious pain and suffering of William Gonzalez, deceased (hereinafter “decedent”), by Heidi Nitti and Daniel Gonzalez, as co-administrators of the Estate, as the result of alleged medical malpractice by Stony Brook University Hospital, Stony Brook, New York. The alleged occurrence took place between August 2007 and September 2007.


Movants ask this Court to grant permission to file a late claim.[2]

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 movants’ papers in support of the motion. Defendant has submitted no opposition to the motion.

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


September 21, 2009
Hauppauge, New York

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




[1].The following papers have been read and considered on movants’ motion: Notice of Motion dated May 19, 2009 and filed May 26, 2009; Attorney’s Affidavit of Ellen M. Sundheimer, Esq. with annexed Exhibits A-L dated May 19, 2009 and filed May 26, 2009.
[2].Movants incorrectly ask 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.