Opinion
# 2012-018-303 Claim No. 114132 Motion No. M-80900
02-06-2012
Rink v. STATE OF NEW YORK
Synopsis
Claimant's motion to file a late claim was granted, however, to proceed efficiently and with the authority of the Court, Claimant is directed to file and serve an amended claim. Additionally, the Preliminary Conference Order was amended. Case information
UID: 2012-018-303 Claimant(s): RALPH RINK, as Administrator of the Estate of JOANNE RINK, and RALPH RINK, Individually Claimant short name: Rink Footnote (claimant name) : Defendant(s): STATE OF NEW YORK Footnote (defendant name) : Third-party claimant (s): Third-party defendant (s): Claim number(s): 114132 Motion number(s): M-80900 Cross-motion number (s): Judge: DIANE L. FITZPATRICK WALTER D. KOGUT, P.C. Claimant's attorney: By: Walter D. Kogut, Esquire ERIC T. SCHNEIDERMAN Attorney General of the State of New York Defendant's attorney: By: Maureen A. MacPherson, Esquire Assistant Attorney General Third-party defendant's attorney: Signature date: February 6, 2012 City: Syracuse Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant brings a motion for permission to file and serve a late claim in accordance with Court of Claims Act § 10 (6). Defendant opposes the motion. Oral argument was heard on February 2, 2012, and at that time, the Court granted the motion and directed Claimant to serve and file an amended claim within 30 days of that date.
Claimant brought a timely personal injury action against the State of New York for negligence and medical malpractice related to the serious injuries Joanne Rink suffered when, on June 6, 2007, as a patient at the State University of New York, Upstate Medical University Hospital (hereinafter University Hospital) she jumped from the window in her hospital room and fell to the ground below. She suffered injuries and was in a coma until she died on February 3, 2010. Claimant was appointed as Administrator of Joanne Rink's estate on March 4, 2010. Claimant now seeks to bring a claim for the wrongful death of Joanne Rink. In support of Claimant's application, he has submitted an affirmation from the medical examiner who performed the autopsy of Mrs. Rink and indicates that the cause of death was "[c]omplications of closed head injuries due to precipitation from height due to delirium associated with treatment of injuries sustained in roll-over automobile collision."
A proposed claimant who fails to timely file and serve a claim or serve a notice of intention may be permitted, upon application and in the discretion of the Court, to file a claim which complies with section 11 of the Court of Claims Act, at any time before an action asserting a like claim against a citizen of the State would be barred under the provisions of article two of the CPLR (Court of Claims Act § 10 [6]). This application is timely within two years of decedent's date of death (Court of Claims Act § 10 [6] and EPTL 5-4.1).
To determine whether an application for permission to file a late claim should be granted, consideration must be given to the six factors listed in Court of Claims Act § 10 (6), and any other relevant factors. The presence or absence of any one factor is not determinative (Bay Terrace Cooperative Section IV, Inc. v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979; Ledet v State of New York, 207 AD2d 965). Instead, it is a balancing of all of the factors by the Court which may warrant the granting of the application to file and serve a late claim.
In this case, Claimant has established that the State has had notice, an opportunity to investigate, and Defendant acknowledges that it will not be prejudiced by the granting of this application. The facts giving rise to the proposed wrongful death cause of action are the same facts that gave rise to the personal injury claim previously filed and served. Claimant has also established under the Santana standard that there is reasonable cause to believe that the proposed claim is meritorious (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 11).
Based upon the submissions and oral arguments of counsel, the Court granted Claimant's motion. To proceed efficiently, and with the authority of the Court to permit an amendment to the pleadings, even after a trial in accordance with CPLR 3025 (c) (see Howard v State of New York, 175 AD2d 634 [4th Dept 1991]), Claimant was directed to file and serve an amended claim adding the wrongful death cause of action within 30 days of February 2, 2012. Defendant shall have the opportunity to serve an Amended Answer.
Additionally, the Amended Preliminary Conference Order dated July 15, 2009, is amended and accordingly it is hereby
ORDERED, that all depositions shall be completed by June 22, 2012; and it is further
ORDERED, that all other discovery shall be completed by July 13, 2012; and it is further
ORDERED, that a Note of Issue shall be filed by July 27, 2012 and that within 45 days after the filing of a note of issue a settlement conference shall be held in accordance with Uniform Rules for the Court of Claims § 206.12-a; and it is further
ORDERED, that except as modified herein the Preliminary Conference Stipulation and Order dated August 13, 2007, remains in full force and effect.
February 6, 2012
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims
The Court has considered the following documents in deciding this motion:
1) Notice of Motion.
2) Affirmation of Walter D. Kogut, Esquire, in support with exhibits attached thereto.
3) Undated "Claimant's Memorandum of Law."
4) Affirmation of Maureen A. MacPherson, Esquire, Assistant Attorney General, in opposition.
5) Reply Affirmation of Walter D. Kogut, Esquire, in support, with exhibits attached thereto.