|Claimant short name:||DIONISI|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||James J. Lack|
|Claimant's attorney:||Sacco & Fillas, LLP
By: Paul Polios, Esq.
|Defendant's attorney:||Andrew M. Cuomo, New York State Attorney General
By: Todd A. Schall, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||March 24, 2010|
|See also (multicaptioned case)|
This is a claim brought by Erica Dionisio (hereinafter "movant") due to the alleged negligence of the defendant, the State of New York (hereinafter "State"). The alleged negligence occurred on July 26, 2008, in Wantagh, New York.
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 movant's application and, therefore, grants permission to file a late claim (Jomarron v State of New York, 23 AD3d 527). Movant is directed to serve and file the proposed claim within forty-five (45) days of the filing date of this Decision and Order in accordance with §§10, 11 and 11-a of the Court of Claims Act.
March 24, 2010
Hauppauge, New York
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 for Permission to File a Late Notice of Claim Pursuant to New York State Court of Claims Act §10(6) dated October 21, 2009 and filed November 4, 2009; Affirmation in Support of Paul Polios, Esq. with annexed Exhibits A-E dated October 23, 2009 and filed November 4, 2009; Affirmation in Opposition of Todd A. Schall, Esq. dated November 20, 2009 and filed November 23, 2009.
2. The Court notes there is no remedy to serve an "amended late Notice of Claim" as counsel requests. The appropriate remedy is to seek permission to file a late claim pursuant to Court of Claims Act §10(6).