How to File a Claim Against a Municipal Hospital

A medical malpractice lawsuit against the State of New York may only be filed in the Court of Claims. First, however, you must file a notice of claim with the State (see, Court of Claims Act section 10). Filing occurs on the date when a claim is received in the office of the Chief Clerk, in Albany, not when it is mailed. A filing fee of $50 is required for all claims.

When a claim is filed, the claimant’s attorney will receive a letter from the Chief Clerk acknowledging the claim’s filing, assigning a claim number and advising of the judge to whom a case has been assigned.

A Notice of Intention to File a Claim is an optional document that a potential claimant may serve upon the defendant to extend the time to serve and file a claim. The statute of limitations for a negligence cause of action is two years from the accrual of the claim.

The Substance of a Notice of Claim

Section 11(b) of the Court of Claims Act provides that a Claim “shall state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and, except in an action to recover damages for personal injury, medical, dental, or podiatric malpractice, the total sum claimed. A claim must set forth sufficient allegations of fact to state a cause of action.

The Jurisdiction of the Court of Claims

State agencies do not have a legal existence separate from that of the State and thus, where the claim is based upon improper conduct of a State agency, the named defendant should be “The State of New York”. The Court of Claims does not have jurisdiction over any individuals, including State employees. A claim’s venue will be determined by the county where it accrued.

The Procedure for Filing a Late Claim

The most commonly used is a motion for permission to file a late claim, pursuant to section 10(6) of the Court of Claims Act. The motion papers should include: (1) a notice of motion; (2) a supporting affidavit; (3) relevant exhibits; (4) a copy of the proposed claim; (5) an affidavit of service of the motion papers on the defendant.

Section 10(5) of the Court of Claims Act: “If the claimant shall be under a legal disability, the claim may be presented within two years after such disability is removed.”

Discretionary relief from the failure to comply with those time constraints is authorized under Court of Claims Act section 10(6) which identifies six factors among those to be weighed.

• Whether the delay in filing the claim was reasonable;
• Whether the State had notice of the essential facts constituting the claim;
• Whether the State had the opportunity to investigate the circumstances underlying the claim;
• Whether the claim appears to be meritorious;
• Whether the failure to serve the State within the statutory period resulted in substantial prejudice to the State;
• Whether the claimant has any other available remedy.

The presence or absence of any specific factor is not determinative. Gavigan v. State, 176 A.D.2d 1117 (3rd Dep’t 1991); Bay Terrace Coop. Section IV v. New York State Employees’ Retirement Sys. Policemen’s & Firemen’s Retirement Sys., 55 N.Y.2d 979 (1982). Where there is actual notice and an absence of prejudice, the lack of a reasonable excuse will not bar the granting of leave to serve a late notice of claim.

The actual knowledge requirement “contemplates actual knowledge of the essential facts constituting the claim”, not knowledge of a specific legal theory. Citing, Wally G., 27 N.Y.3d at 677.