Picarella v. State of New York

Picarella v State of New York (2024 NY Slip Op 50645(U)) [*1] Picarella v State of New York 2024 NY Slip Op 50645(U) Decided on May 16, 2024 Court Of Claims Mejias-Glover, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on May 16, 2024 Court of Claims Luciano A. Picarella, Movant, against The State of New York, Defendant. Claim No. NONE FOR MOVANT: Davis & Ferber, LLP By: Cary M. Greenberg, Esq. FOR DEFENDANT: Letitia James, Attorney General By: Mario E. Simmons, Esq., AAG Linda K. Mejias-Glover, J. Movant filed a Motion for Permission to File a Late Notice of Intention with the Clerk of this Court on June 15, 2023, seeking an order, pursuant to Court of Claims Act § 10 (6), granting Movant permission to file a late notice of intention to file claim nun pro tunc against the State of New York. The Defendant has submitted opposition to the motion and Movant has submitted a reply thereto. RELEVANT FACTUAL BACKGROUND Movant's claim, which arose on November 14, 2022, sounds in medical malpractice concerning the medical care and treatment rendered to Movant, Luciano A. Picarella by agents, servant, and/or employees of Defendant. LAW AND ANALYSIS Court of Claims Act § 10(3) requires that a claim shall be filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor . . . " (emphasis added). "Where the time within which an application to file a late claim may be granted has elapsed (Court of Claims Act, §10, subd 6), a claimant may not be relieved from complete compliance with the prescribed statutory procedures for the filing and service of a claim or notice of intention to file as such failure creates a jurisdictional defect and the court is without discretionary power to grant nunc pro tunc relief" (Byrne v State, 104 AD2d 782, 783, [2d Dept 1984]). Court of Claims Act Section 10(6) grants the Court the discretion to allow the filing of a late claim upon consideration of relevant factors. The language of the statute does not grant the Court such discretion with respect to filing of a late notice of intention to file a claim nor does it grant the Court the authority to grant a request for nunc pro tunc relief. DECISION AND ORDER Based upon the lack of statutory authority to grant the relief requested, it is hereby ORDERED, that M-99591 is DENIED in its entirety. Dated: May 16, 2024 Hauppauge, New York HON. LINDA K. MEJIAS-GLOVER, Judge of the Court of Claims Papers Read: 1. Notice of Motion for Leave to File Late Notice of Intention Nunc Pro Tunc, filed on June 15, 2023, Attorney's Affirmation, Exhibits Annexed 2. Affirmation in Opposition 3. Reply Affirmation