|Claimant short name:||RODRIGUEZ|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||DIANE L. FITZPATRICK|
|Claimant's attorney:||STANLEY LAW OFFICES, LLP
By: Brianne M. Carbonaro, Esquire
|Defendant's attorney:||BARBARA D. UNDERWOOD
Attorney General of the State of New York
By: Joseph D. Callery, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||June 1, 2018|
|See also (multicaptioned case)|
Movant brings a motion seeking permission to file a late claim against the State of New York. Defendant has responded in correspondence that it has no opposition to Movant amending her notice of intention.
From Movant's counsel's affirmation and exhibits, it appears that Movant presented to Upstate University Hospital in Syracuse on August 11, 2016, complaining of back pain radiating down her leg. Movant was given Lorazepam and Diazepam in the Emergency Room. Thereafter, Movant called for a nurse to assist her in attending the bathroom. When a nurse didn't come, Movant attempted to get up. She fell and fractured her femur requiring surgery. Movant served Defendant with a notice of intention on August 31, 2016.(1) The notice of intention reflects that the incident arose on August 12, 2016. Movant now seeks permission to file a late claim, due to the incorrect date in the notice of intention or, in the alternative, permission to amend the date of loss in the notice of intention from August 12, 2016 to August 11, 2016.
The Court will consider this motion solely as one seeking permission to file a late claim, as there is no mechanism for this Court to grant permission to amend a notice of intention, which is not a pleading (see Spark v State of New York, UID No. 2017-053-536 [Ct Cl, Sampson, J., July 20, 2017]).
Court of Claims Act section 10 (6) allows a claimant who has failed to serve a notice of intention that complies with Court of Claims Act section 11, or who has failed to file and properly serve a claim within the time frame set forth in Court of Claims Act section 10 to make an application to the Court to file such a claim, in the discretion of the Court, at any time before an action asserting a like claim against a citizen of the State would be barred under article two of the CPLR (Court of Claims Act § 10 ). This application is timely (Court of Claims Act § 10 ; CPLR 214 ; CPLR 214-a).
To determine whether an application for permission to file a late claim should be granted, the Court considers the six factors listed in Court of Claims Act section 10 (6), and any other relevant factors. It is a balancing of all of these factors, rather than the presence or absence of any one that warrants granting the application (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 ; Ledet v State of New York, 207 AD2d 965 [4th Dept 1994]).
The first factor is whether there is a reasonable excuse for the delay. This motion presents differently than most, as a timely notice of intention was properly served, but unfortunately contained an incorrect date. So despite no delay in timely serving a notice of intention, the date of the incident set forth was incorrect. The question here really is whether there was a reasonable excuse for any delay in ascertaining the actual date of the alleged wrongdoing and bringing the motion. Movant's counsel timely requested the medical records from the hospital and copies of those records were generated on September 27, 2016. It is not clear when Movant's counsel actually received those records. The motion in this case was filed on February 22, 2018. Despite the apparent delay in bringing this motion (Casey v State of New York, ___ AD3d ___ 2018 Slip Op 03120 [2d Dept 2018]; Klinger v State of New York, 213 AD2d 378, 379 [2d Dept 1995]), without any explanation, this is really only one factor to be considered.
The factors of whether the State had notice of the essential facts, an opportunity to investigate the underlying claim, and whether the State will suffer substantial prejudice if the late filing and serving of the claim are permitted will all be addressed together. These factors all weigh in favor of granting Movant's application, the timely notification of the facts underlying this claim, referencing only an incorrect date included the date Movant was still under the care of the State hospital. An investigation could have been done with the information provided and revealed the actual date of injury as well. No prejudice will result from the granting of this application.
The next factor, whether the claim appears to be meritorious, is often referred to as the most essential factor. Unlike a party who has timely filed a claim, one seeking permission to file a late claim has the heavier burden of demonstrating that the proposed claim appears to be meritorious (see Nyberg v State of New York, 154 Misc 2d 199 [Ct Cl 1992]). Generally, a proposed claim meets this standard if it is not patently groundless, frivolous, or legally defective, and upon consideration of the entire record there is cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]). Movant has stated a potentially meritorious claim. Reading Movant's affidavit, the notice of intention, proposed claim, and other supporting documents, she has met her minimal burden to establish the potential meritoriousness of her proposed claim.
The final factor is whether the Movant has any other available remedy. This factor was not specifically addressed, however, there does not appear to be any other remedy for Movant.
Accordingly, upon balancing all of the factors in Court of Claims Act section 10 (6), this Court GRANTS the Movant's motion to permit the late filing and serving of the proposed claim. The proposed claim properly verified in accordance with CPLR 3020 and 3021, should be served in accordance with Court of Claims Act section 11 and all other applicable statutes and Court rules, and Movant should pay the filing fee or make a proper application pursuant to CPLR 1101 in accordance with Court of Claims Act section 11-a (1) within 30 days of the date this Decision and Order is filed with the Clerk of the Court.
June 1, 2018
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims
The Court has considered the following in deciding this motion:
1) Notice of Motion.
2) Affirmation of Brianne M. Carbonaro, Esquire, in support, with attachments thereto.
3) Letter dated March 22, 2018 from Joseph D. Callery, Esquire, Assistant Attorney General.
1. Movant's counsel's affirmation indicates the notice of intention was served on August 31, 2017, however, the affidavit of service in Exhibit C reflects it was personally served on August 31, 2016.