New York State Court of Claims

New York State Court of Claims
O'DAY v. THE STATE OF NEW YORK, # 2010-033-405, Claim No. None, Motion No. M-78211


Case information

UID: 2010-033-405
Claimant short name: O'DAY
Footnote (claimant name) :
Footnote (defendant name) : The court sua sponte amends the caption to read The State of New York as the only properly named Defendant.
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): None
Motion number(s): M-78211
Cross-motion number(s):
Judge: James J. Lack
Claimant's attorney: Philip Foote Law, PLLC
By: Philip P. Foote, 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: September 24, 2010
City: Hauppauge
Official citation:
Appellate results:
See also (multicaptioned case)


Theresa B. O'Day, as Executrix of the Estate of Raymond O'Day (hereinafter "movant") seeks permission to file a late claim against the State of New York pursuant to Court of Claims Act 10(6)(2) due to the alleged medical malpractice of the defendant, the State of New York (hereinafter "State"). The alleged medical malpractice occurred between October 24, 2009 and November 25, 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 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. Movant is also directed to take note of the court's amendment of the caption when serving and filing the proposed claim.

September 24, 2010

Hauppauge, New York

James J. Lack

Judge of the Court of Claims

2. The following papers have been read and considered on movant's motion: Notice of Motion to Extend Time to File Notice of Claim; dated April 26, 2010 and filed May 6, 2010; Affirmation of Philip P. Foote, Esq. with annexed Exhibits A-B dated April 26, 2010 and filed May 6, 2010; Affirmation in Opposition of Albert E. Masry, Esq. with annexed Exhibit A dated May 11, 2010 and filed May 13, 2010; Reply Affirmation of Philip P. Foote, Esq. with annexed Exhibit A dated June 14, 2010 and filed June 16, 2010.