New York State Court of Claims

New York State Court of Claims
SOLER v. THE STATE OF NEW YORK, # 2020-045-032, Claim No. 133086, Motion No. M-94744

Synopsis

Claimant's motion for an order permitting a notice of medical malpractice deemed timely filed nunc pro tunc.

Case information

UID: 2020-045-032
Claimant(s): TONY FERNANDO MENDEZ SOLER
Claimant short name: SOLER
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 133086
Motion number(s): M-94744
Cross-motion number(s):
Judge: GINA M. LOPEZ-SUMMA
Claimant's attorney: Ferro, Kuba, Mangano, Skyler, P.C.
By: Rebecca J. Fortney, Esq.
Defendant's attorney: Hon. Letitia James, Attorney General
By: Stacey D. Finley, Assistant Attorney General
Third-party defendant's attorney:
Signature date: May 14, 2020
City: Hauppauge
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

The following papers were read and considered by the Court on this motion: Claimant's Notice of Motion, and Claimant's Attorney's Affirmation with annexed Exhibits 1-3.

By claim filed May 14, 2019, claimant seeks monetary damages for injures he allegedly suffered when he was in the care of defendant at Stony Brook University Hospital. The claim is for negligence and medical malpractice. Defendant filed an answer on June 10, 2019. An amended claim was filed on June 28, 2019, and defendant filed an answer to the amended claim on July 1, 2019.

Claimant now moves for an order permitting a notice of medical malpractice deemed timely filed nunc pro tunc. Claimant's application is supported by an affirmation of counsel, to which is attached the proposed notice (Aff, Exh 3).

In the affirmation in support claimant notes that he has already served his bill of particulars, responses as well as demands, and therefore defendant would not be prejudiced by the late filing. Defendant takes no position on the motion.

Accordingly, claimant's unopposed motion permitting the late service and filing of a notice of medical malpractice, dental or podiatric malpractice action is granted (see CPLR 3406, CPLR 2004, Tewari v Tsoutsouras, 75 NY2d 1, 12 [1989]; see e.g. Heafy v State of New York (Stony Brook Hospital Medical Center), UID No. 2017-050-029 [Ct Cl, Lynch, J. June 14, 2017] [permitting the late service and filing of a notice of medical malpractice action]). The notice of medical malpractice action is deemed timely served and filed October 18, 2019, as part of the present application. No further action by claimant is necessary with respect to this application (see Heafy, supra]).

May 14, 2020

Hauppauge, New York

GINA M. LOPEZ-SUMMA

Judge of the Court of Claims