New York State Court of Claims

New York State Court of Claims

WILLIAMS v. THE STATE OF NEW YORK, #2009-042-513, Claim No. NONE, Motion No. M-76742


Synopsis


This motion is brought by claimant for permission to late file a claim pursuant to Court of Claims Act Section 10 (6). The State consented to claimant’s motion. The court granted claimant’s motion.

Case Information

UID:
2009-042-513
Claimant(s):
JOSEPH W. WILLIAMS
Claimant short name:
WILLIAMS
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-76742
Cross-motion number(s):

Judge:
NORMAN I. SIEGEL
Claimant’s attorney:
FRIEDMAN, HARFENIST, KRAUT & PERLSTEINBy: JOSEPH W. WILLIAMS
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General of the State of New York
By: G. LAWRENCE DILLON, ESQ. Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 9, 2009
City:
Utica
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The court has considered the following papers on claimant’s motion for permission to late file a claim:
  1. Notice of Motion, filed May 29, 2009
  2. Affirmation of Neil Torczyner, Esq., dated May 28, 2009
  3. Affirmation of J. Steven Kaufman, M.D., dated April 8, 2009
  4. Proposed Verified Claim, dated May 22, 2009
  5. Affidavit of Joseph W. Williams, sworn to May 22, 2009
  6. Letter from Assistant Attorney General, G. Lawrence Dillon, Esq., dated July 7, 2009


This matter comes before the court on a motion by claimant seeking permission to file a late claim, pursuant to Court of Claims Act Section 10 (6). The State has consented to claimant’s motion seeking permission to file a late claim.

The underlying claim is for medical malpractice allegedly arising out of treatment rendered to the claimant, an inmate at a state facility, during the period of December 16, 2006 through April 3, 2007. Claimant’s motion was filed on May 29, 2009.
Court of Claims Act § 10 (6) provides, in relevant part, that:

[i]n determining whether to permit the [late] filing of a claim . . . , the court shall consider, among other factors, whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy.


The presence or absence of any one factor is not dispositive in the court’s consideration of a late claim motion. (See Bay Terrace Coop. Section IV v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, 55 NY2d 979; Rice v State of New York, UID No. 2006-028-598, Claim No. NONE, Motion No. M-71150, October 18, 2006, Sise, P.J.). Additionally, the court is afforded broad discretion in its determination and consideration of the statutory factors. Matter of Gonzalez v State of New York, 299 AD2d 675; Doe v State of New York, UID No. 2004-028-512, Claim No. NONE, Motion No. M-67159, March 10, 2004, Sise, P.J.

Having reviewed the claimant’s submissions and considered them in the light of the statutory factors applicable to a motion for permission to file a late claim, and given the State’s consent to claimant’s requested relief on the motion, the court is satisfied that the relief is appropriate in this case.

In particular, it is worth noting that the application is timely brought and the State should have sufficient documentation of the medical treatment that it afforded to claimant to provide it with opportunity to investigate and to avoid prejudice to the state. Furthermore, the claim appears to be meritorious, as evidenced by claimant’s expert physician’s affirmation.

Permission to file a late claim, pursuant to Court of Claims Act Section 10 (6), is granted. Claimant is directed to serve and file a claim in accordance with the Court of Claims Act Sections 11 and 11-a within sixty (60) days of the filing date of this order.



September 9, 2009
Utica, New York

HON. NORMAN I. SIEGEL
Judge of the Court of Claims