|Claimant(s):||WILLIAM JORDAN and CHRISTINE JORDAN|
|Claimant short name:||JORDAN|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||James J. Lack|
|Claimant's attorney:||Brian P. Neary, P.C.
By: Brian P. Neary, 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:||June 21, 2010|
|See also (multicaptioned case)|
William Jordan and Christine Jordan (hereinafter "movants") seek permission to file a late claim against the State of New York pursuant to Court of Claims Act §10(6)(1) due to the alleged medical malpractice of the defendant, the State of New York (hereinafter "State"). The alleged medical malpractice occurred on July 29, 2009, in Stony Brook, 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 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.
June 21, 2010
Hauppauge, New York
James J. Lack
Judge of the Court of Claims
1. The following papers were read and considered on movants' motion: Notice of Motion dated January 28, 2010 and filed February 1, 2010; Affidavit of William Jordan sworn to January 28, 2010 and filed February 1, 2010; Affirmation of Brian P. Neary, Esq. with annexed Exhibits 1-4 dated January 28,2010 and filed February 1, 2010; Affirmation in Opposition of Albert E. Masry, Esq. dated February 16, 2010 and filed February 17, 2010.