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MOTION TO FILE A LATE NOTICE OF CLAIM IN THIS MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN GRANTED, CRITERIA FOR LATE NOTICE IN THE COURT OF CLAIMS EXPLAINED (SECOND DEPT).

The Second Department, reversing the Court of Claims, determined claimants' motion to file a late notice of claim in this medical malpractice action should not have been granted:

“Court of Claims Act § 10(6) permits a court, in its discretion, upon consideration of the enumerated factors, to allow a claimant to file a late claim” … . The enumerated factors are whether the delay in filing was excusable, the State of New York had notice of the essential facts constituting the claim, the State had an opportunity to investigate the circumstances underlying the claim, the claim appears to be meritorious, the State is prejudiced, and the claimant has any other available remedy … . “No one factor is deemed controlling, nor is the presence or absence of any one factor determinative” … . …

The claimants failed to demonstrate a reasonable excuse for the delay of more than one year and eight months in seeking leave to file a late claim. …

“Merely having or creating hospital records, without more, does not establish actual knowledge of a potential injury where the records do not evince that the medical staff, by its acts or omissions, inflicted any injury” on the claimants' decedent attributable to malpractice or negligence … . …

The claimants also failed to demonstrate that the defendant had an opportunity to timely investigate the facts underlying the claim, as well as locate and examine witnesses while their memories of the facts were still fresh … . …

In addition, the claimants failed to demonstrate a potentially meritorious cause of action based on their allegations of medical malpractice, since they failed to provide an affidavit of merit from a physician … . Decker v State of New York, 2018 NY Slip Op 05751, Second Dept 8-15-18

COURT OF CLAIMS (MOTION TO FILE A LATE NOTICE OF CLAIM IN THIS MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN GRANTED, CRITERIA FOR LATE NOTICE IN THE COURT OF CLAIMS EXPLAINED (SECOND DEPT))/NOTICE OF CLAIM (COURT OF CLAIMS, (MOTION TO FILE A LATE NOTICE OF CLAIM IN THIS MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN GRANTED, CRITERIA FOR LATE NOTICE IN THE COURT OF CLAIMS EXPLAINED (SECOND DEPT))/MEDICAL MALPRACTICE (COURT OF CLAIMS, NOTICE OF CLAIM, MOTION TO FILE A LATE NOTICE OF CLAIM IN THIS MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN GRANTED, CRITERIA FOR LATE NOTICE IN THE COURT OF CLAIMS EXPLAINED (SECOND DEPT))/NEGLIGENCE (COURT OF CLAIMS, NOTICE OF CLAIM, MOTION TO FILE A LATE NOTICE OF CLAIM IN THIS MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN GRANTED, CRITERIA FOR LATE NOTICE IN THE COURT OF CLAIMS EXPLAINED (SECOND DEPT))

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