|Claimant(s):||JOHN GUMIN and NADINE GUMIN|
|Claimant short name:||GUMIN|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||James J. Lack|
|Claimant's attorney:||Patrick J. Hackett, Esq.|
|Defendant's attorney:||Andrew M. Cuomo, New York State Attorney General
By: Albert E. Masry, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 7, 2009|
|See also (multicaptioned case)|
This is a motion brought by John Gumin and Nadine Gumin (hereinafter "movants") due to the alleged medical malpractice of the defendant, the State of New York (hereinafter "State"). The alleged medical malpractice occurred between September 12 and 13, 2007, at Stony Brook University Hospital, in Stony Brook, New York.
Movants seek 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 serve or 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 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.
December 7, 2009
Hauppauge, New York
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 September 10, 2009 and filed September 10, 2009; Affirmation of Patrick J. Hackett, Esq. with annexed Exhibits A-E dated September 10, 2009; Affirmation in Opposition of Albert E. Masry, Esq. with annexed Exhibit A dated September 30, 2009 and filed October 2, 2009; Reply Affirmation of Patrick J. Hackett, Esq. dated October 9, 2009 and filed October 13, 2009.