Innis v. State
| Decision Date | 28 February 1983 |
| Citation | 92 A.D.2d 606,459 N.Y.S.2d 799 |
| Parties | Pearlina INNIS et al., Respondents, v. The STATE of New York et al., Appellants; et al., Defendants. |
| Court | New York Supreme Court — Appellate Division |
Robert Abrams, Atty. Gen., New York City (Wilson, Elser, Edelman & Dicker, New York City [Harold J. Moskowitz, James L. Fischer, New York City, and Wayne J. Keeley, Yonkers], of counsel), for appellants.
Braverman & Rosen, New York City (Debra B. DiCicco, New York City, of counsel), for respondents.
Before DAMIANI, J.P., and GULOTTA, RUBIN and BOYERS, JJ.
MEMORANDUM BY THE COURT.
In a proceeding for leave to file a late claim, defendants Downstate Medical Center State University Hospital and the State of New York appeal from an order of the Court of Claims, dated May 21, 1981, which granted claimants' motion for leave to file said late claim against them.
Order reversed, as a matter of discretion, without costs or disbursements, and motion denied.
Claimants, husband and wife, based their claim on the wife's unsuccessful tubal ligation performed by defendant hospital on October 27, 1978. By January of 1979, tests indicated the wife's pregnancy. On February 9, 1979, an abortion was performed and a second tubal ligation followed in April 1979. On April 24, 1981, claimants moved for leave to file a late claim pursuant to subdivision 6 of section 10 of the Court of Claims Act. In granting the motion, the Court of Claims addressed each of the six delineated factors set forth in subdivision 6 of section 10 and found only the first, whether the delay in filing the claim was excusable, was not satisfied. We agree that the excuses offered for the delay (ignorance of the filing requirement and unsupported allegations of deception by hospital personnel) are insufficient; we disagree, however, with the result reached by the Court of Claims.
While subdivision 6 of section 10 of the Court of Claims Act, "among other factors" delineates six specific factors to consider in determining late filing applications, we are cognizant that compliance with all six factors may not be necessary in order for an application to be granted (Bay Terrace Coop. Section IV v. New York State Employees Retirement System Policemen's & Firemen's Retirement System, 55 N.Y.2d 979, 449 N.Y.S.2d 185, 434 N.E.2d 254, on remand, 89 A.D.2d 992, 454 N.Y.S.2d 327; Matter of Butler v. State of New York, 81 A.D.2d 834, 438 N.Y.S.2d 834). In the instant case, the claimants' motion was...
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