This is a motion by Giuliano Gallo (hereinafter “claimant”) for
permission to file a late claim pursuant to Court of Claims Act
, relating to the alleged medical
malpractice of the State of New York on February 7, 2008, at Stony Brook
University Hospital, Stony Brook, New York. The claim of Mary Alexandra Gallo
is derivative in nature.
The alleged medical malpractice of the State of New York (hereinafter
“defendant”) arises from the treatment of claimant. Claimant
alleges he received a lumbar puncture in defendant’s emergency room
without informed consent.
Claimant submits the motion to file a claim pursuant to Court of Claims Act
§10(6). Claimant previously served and filed a claim (Claim No. 115076).
However, defendant has interposed a jurisdictional defense which states the
claim is jurisdictionally defective in that in lacks sufficient
Defendant cross-moves this Court to dismiss the claim as jurisdictionally
Defendant argues the claim fails
to sufficiently particularize facts to give defendant an opportunity to
The requirements of the Court of Claims Act are jurisdictional in nature and
must be strictly construed (Kolnacki v State of New York, 8 NY3d 277;
Lurie v State of New York, 73 AD2d 1006, aff’d 52 NY2d 849).
The purpose of these requirements is to give the State prompt notice of an
occurrence and an opportunity to investigate the facts and prepare a defense.
Lepkowski v State of New York, 1 NY3d 201, 207, noted that the Court of
Claims Act "places five specific substantive conditions upon the State's waiver
of sovereign immunity by requiring the claim to specify (1) ‘the nature of
[the claim]’; (2) ‘the time when’ it arose; (3) the
‘place where’ it arose; (4) ‘the items of damage or injuries
claimed to have been sustained’; and (5) ‘the total sum
claimed.’" In Kolnacki, the Court of Appeals said,
“Lepkowski made clear that all of the requirements in section 11
(b) are ‘substantive conditions upon the State's waiver of sovereign
immunity’ (1 NY3d at 207). The failure to satisfy any of the conditions is
a jurisdictional defect” (at 280-281).
In examining claimant’s papers, the claim is devoid of specific facts as
to what occurred to claimant during his stay at defendant’s hospital so as
to give defendant notice as to the facts of this matter.
Therefore, the Court grants defendant’s motion and Claim No. 115076 is
In the event a claim or notice of intention is not filed within 90 days of the
date of accrual, an application may be made for permission to file a late claim
pursuant to Court of Claims Act §10(6). The application must be made
before an action asserting a like claim against a citizen of the state would be
barred under the provisions of the CPLR.
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 serve and file 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
claimant’s application and, therefore, grants permission to file a late
claim (Jomarron v State of New York, 23 AD3d 527). Claimants 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.