Opinion
# 2020-045-032 Claim No. 133086 Motion No. M-94744
05-14-2020
SOLER v. THE STATE OF NEW YORK
Ferro, Kuba, Mangano, Skyler, P.C. By: Rebecca J. Fortney, Esq. Hon. Letitia James, Attorney General By: Stacey D. Finley, Assistant Attorney General
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