IN RE: Michael O'SHEA (2000)

Supreme Court, Appellate Division, Second Department, New York.

IN RE: Michael O'SHEA, et al., Respondents, v. STATE of New York, Appellant.

Decided: December 04, 2000

LAWRENCE J. BRACKEN, J.P., DAVID S. RITTER, WILLIAM D. FRIEDMANN and ANITA R. FLORIO, JJ.

Eliot Spitzer, Attorney General, New York, N.Y. (Michael S. Buskus and Diane G. Temkin of counsel), for appellant. Sullivan Papain Block McGrath & Cannavo, P.C., New York, N.Y. (Thomas Mongelli and Stephen C. Glasser of counsel), for respondents.

In a proceeding pursuant to Court of Claims Act § 10(6) for leave to serve a late notice of claim, the State of New York appeals from an order of the Court of Claims (Marin, J.), dated October 19, 1999, which granted the application.

ORDERED that the order is affirmed, with costs.

The Court of Claims providently exercised its discretion in granting the claimants leave to serve a late notice of claim (see, Court of Claims Act § 10 [6]; Matter of Beckford v. State of New York, 264 A.D.2d 841, 695 N.Y.S.2d 706; Ledet v. State of New York, 207 A.D.2d 965, 616 N.Y.S.2d 831). Contrary to the appellant's contention, the Court of Claims did not impermissibly cast itself in the role of a medical expert when it determined that the hospital records submitted by the claimants supported the assertion that the claimant Michael O'Shea was not treated for more than six hours after he entered the emergency room.

MEMORANDUM BY THE COURT.

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