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Claimant is Requesting Notice of Late Claim


In this case the claimant is Timothy C. Clark and the defendant is the Roswell Park Cancer Institute Corporation. The claimant is represented by Micheal R. Drumm from Brown, Chiari, LLP. The defendant is being represented by Michael E. Hudson J. from the law office of Gibson, McAskill & Crosby LLP. The case is being heard in the Court of Claims of New York.

Case History

A New York Injury Lawyer said the Court has reviewed several documents pertaining to this case. These include the Notice of Motion that is dated the 20th of July, 2010 and filed the 23rd of July, 2010. The attorney’s affidavit from Michael R. Drumm, with a notice of claim and attached exhibits, the affidavit of Timothy C. Clark and the affidavit of Fred Berkowitz M.D., and the affidavit in opposition for the motion for leave to file a late notice of claim for Jennifer L. Noah.

Case Facts

The claimant is making a medical malpracticeclaim in regard to the care he received from the 10th of March in 2009 through the 28th of April 2009 at the Roswell Park Cancer Institute Corporations. The claimant, Mr. Clark, was admitted to Roswell Park on the 10th of March, 2009, for surgery to remove a cancerous mass located on the lower part of his colon.

The hospital records along with the affidavit from Michael R. Drumm, show that Clark developed several symptoms, including a fever, on the 14th and 15th of March. CAT scan was conducted on the 15th to assess the site of the surgery.

The CAT scan showed an anastomotic leak at the site of the surgery and a surgery to address this leak was scheduled for the 16th. Clark claims that he underwent additional surgeries at this time as well, including a colostomy. He was held in the hospital until the 28th of April. He was then sent to Buffalo General Hospital. At Buffalo General Hospital he was in rehabilitation treatment until the 8th of May. After he was released from Buffalo General Hospital, he had outpatient treatment done at Roswell Park through the end of June, 2009.

The claimant is now requesting a late notice of claim pursuant of General Municipal Law 50. The defendant is opposing this motion for several reasons. First, a New York City Personal Injury Lawyer said the defendants state the claimant has not demonstrated a reasonable excuse for this late notice claim and they also state there is lack of knowledge of the facts of the case.

Case Decision

During his written submissions, Mr. Clark did not address the prejudice issue. However, a Staten Island Personal Injury Lawyer says he states that he believed it was the burden of the defendants to address this issue. It is found that Roswell Park had access to the facts of the case based on their own records and therefore it was unnecessary for the claimant to address this issue.

In regard to the late notice claim, the Court finds in favor of the claimant. The claimant has issued enough evidence to show that the reason for the delay in making the claim is because he was too ill to do so. For this reason, the court finds in favor of the claimant in this case.

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