Late claim application denied-no proposed claim with motion papers, statute of limitations lapsed on medical malpractice claim.
|Claimant short name:||STEWART|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Claimant's attorney:||AVERY STEWART
|Defendant's attorney:||HON. BARBARA D. UNDERWOOD
Attorney General for the State of New York
By: Paul F. Cagino, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||May 23, 2018|
|See also (multicaptioned case)|
The following papers numbered 1-2 were read and considered by the Court on movant's application for leave to serve and file a late claim:
Notice of Motion, Movant's Supporting Affidavit and Exhibit................................1
Defendant's Affirmation in Opposition and Exhibit................................................2
Movant filed the instant motion pursuant to Court of Claims Act § 10 (6) on March 27, 2018. Movant, however, did not include a proposed claim with his motion papers. Movant asserts that the incident forming the basis of his proposed claim occurred on September 16, 2015 and that he was "neglected due to failure of a physician to provide care" (Claimant's Supporting Affidavit). Movant further asserts that "certain standards of conduct were not followed" and that Nurse Mary Reed failed to "do her duty" (id.).
To the extent that movant's proposed claim is based upon medical malpractice occurring on September 16, 2015, movant's late claim application is untimely as the applicable statute of limitations of 2½ years on a medical malpractice claim lapsed on March 16, 2018.
Court of Claims Act § 10 (6) provides that a late claim application must be brought "before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules [emphasis added]." The failure to bring a late claim application before the expiration of the relevant statute of limitations precludes the Court from considering the application because the failure to file a late claim application within the mandated time period is a jurisdictional defect and the Court is without discretionary power to grant nunc pro tunc relief (see Matter of Miller v State of New York, 283 AD2d 830 [3d Dept 2001]; Bergmann v State of New York, 281 AD2d 731, 733 [3d Dept 2001]).
Accordingly, movant's late claim application is DENIED.
May 23, 2018
White Plains, New York
Judge of the Court of Claims