New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK, #2009-033-359, Claim No. None, Motion No. M-77067


Synopsis



Case Information

UID:
2009-033-359
Claimant(s):
JEREMIAH JOHNSON, AN INFANT BY HIS MOTHER AND NATURAL GUARDIAN, SYBIL BRADLEY
Claimant short name:
JOHNSON
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-77067
Cross-motion number(s):

Judge:
James J. Lack
Claimant’s attorney:
Barton, Barton & Plotkin, LLPBy: Sherri L. Plotkin, 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:
December 7, 2009
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a motion by Jeremiah Johnson, an infant by his mother and natural guardian Sybil Bradley, due to the alleged negligence of the defendant, the State of New York (hereinafter “State”). The alleged negligence occurred on August 12, 1999, at Stony Brook University Hospital, 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]. The Court will consider the motion only as to the mother, Sybil Bradley. The son, Jeremiah Johnson, is an infant and thus, permission to file a late claim is unnecessary.

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 the motion for the individual late claim of movant, Sybil Bradley, is denied as untimely. The infant was born in August 1999. Any medical malpractice which was endured by movant is well passed the two and a half year statute of limitations (CPLR 214-a).


December 7, 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 August 11, 2009 and filed August 11, 2009; Attorney’s Affirmation of Sherri L. Plotkin, Esq. with annexed Exhibit A dated August 7, 2009 and filed August 11, 2009; Affirmation in Opposition of Albert E. Masry, Esq. with annexed Exhibit A dated August 17, 2009 and filed August 19, 2009.