Claimant sought to bring an action against defendant State of New York (State) for medical malpractice and negligence arising from the treatment of claimant’s decedent at the State University of New York Upstate Medical University Hospital (Upstate) in the days leading up to decedent’s death. Claimant appealed from an order that denied her motion for permission to file a late claim, without prejudice to the filing of a new application.
A determination by the Court of Claims to grant or deny an application for permission to file a late claim lies within the broad discretion of that court and should not be disturbed absent a clear abuse of that discretion. In exercising that discretion, the court must consider, at minimum, the six factors contained in Court of Claims Act § 10 (6): (1) whether the delay was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears to be meritorious; (5) whether the delay resulted in substantial prejudice to the State; and (6) whether the applicant has another available remedy.
The Supreme Court of the State of New York Appellate Division, Fourth Judicial Department stated in its July 24, 2026 Memorandum and Order: “Here, the Court of Claims did not abuse its discretion by denying the motion. Initially, the court found that, although several of the factors weighed against claimant, including the lack of reasonable excuse for the delay, any prejudice to the State would likely be mitigated by the availability of decedent’s medical records. The court correctly noted, however, that the most significant factor is “whether the claim appears to be meritorious” (Court of Claims Act § 10 [6]), because “it would be futile to permit the filing of a legally deficient claim which would be subject to immediate dismissal, even if the other factors tend to favor the granting of the request”) … general or conclusory allegations of negligence or medical malpractice are insufficient … Here, claimant’s proposed claim provides only a brief recitation of the timeline of decedent’s treatment at Upstate and asserts in conclusory fashion that “[t]his is a claim for negligence and medical malpractice” … In this case, as the court noted, the alleged malpractice or negligence cannot be discerned from the face of the submitted records without the aid of expert medical opinion … As the court also correctly
recognized, this failure to sufficiently particularize the nature of a claim rendered the proposed claim subject to dismissal regardless of any prejudice to the State (see Court of Claims Act § 11 [b]; Williams, 224 AD3d at 792). We therefore conclude that the court did not abuse its discretion in denying claimant’s motion, particularly where the denial was without prejudice to a new application by claimant for permission to file a late claim with a more particularized showing.”
Two dissenters stated, in part: “we disagree with the majority’s conclusion that the alleged negligence or malpractice cannot be discerned from the face of the records in this case. Decedent—age 36—presented to the hospital on two consecutive days. She was discharged without being admitted on both occasions; she was pronounced dead—from precisely the conditions for which she sought care—mere days later. To conclude that medical expert testimony is required under these facts is to effectively hold that medical expert testimony is required for every application for permission to file a late claim for medical malpractice under Court of Claims Act § 10 (6). That is not and never has been the law in the State of New York. Because the court abused its discretion in denying claimant’s motion for permission to file a late claim by erroneously concluding that claimant was required to establish a prima facie case of medical malpractice by way of a medical expert affidavit, we would reverse.”
Source Fleischman v State of New York, CA 25-01061.
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