This is a motion by Marissa S. Kay, an infant under the age of 14 by her father
and natural guardian, Jonathan D. Kay (hereinafter "claimant") to file an
relating to alleged medical
malpractice occurring on July 5, 1991.
alleged malpractice occurred at University Hospital and Medical Center at Stony
Brook (hereinafter "Stony Brook). The allegation is that the physicians in
question failed to properly, timely and adequately assess and treat the needs of
claimant in the days following her birth.
The claim was originally filed June 27, 2001. An amended claim was filed on
April 21, 2003. The amended claim was filed following a decision and order of
Judge Waldon which denied permission to file a late claim as moot (M-63720 and
M-64172). Claimant now seeks permission to file a second amended claim.
Defendant opposes claimant's motion. Defendant argues that the information
which claimant avers as "new" was readily available to claimant in the almost
ten years prior to the initial filing of the claim. In addition, defendant
argues that it would be substantially prejudiced if the Court were to allow
claimant to add new causes of action. Defendant argues that any new causes of
action would be time barred pursuant to CPLR 208.
In reply, claimant argues that Court of Claims Act §10(5) allows a
claimant under a disability, two years after the disability is removed to file a
claim and, therefore, no prejudice inures to defendant because the claimant is
still under the disability of infancy.
The Court examined claimant's request to file an amended claim. CPLR 208 puts
a limitation on the length of time the statute of limitations may be extended
due to the disability of infancy in a medical malpractice action. The section
states that the statute may not be extended longer than ten years from the date
Court of Claims Act §10(3) states that a claim to recover damages or a
notice of intention must be filed within 90 days of the date of accrual. If a
notice of intention is filed, then the claim must be filed within two years of
the date of accrual. Court of Claims Act §10 (5) states "[i]f the claimant
shall be under legal disability, the claim may be presented within two years
after such disability is removed." There is no limitation in Court of Claims
Act §10(5) as to a medical malpractice action as in CPLR 208. The Uniform
Rules for the Court of Claims §206.1(c) states "[t]he provisions of this
Part shall be construed consistent with the Court of Claims Act, and matters not
covered by these provisions or the Court of Claims Act shall be governed by the
Civil Practice Law and Rules (CPLR)." The Uniform Rules for the Court of Claims
§206.1(a) states that the rules are applicable to all actions and
proceeding in the Court of Claims.
The filing of a claim by an infant is clearly provided in Court of Claims Act
§10(5). Thus, CPLR 208 is not applicable to actions in the Court of
Claims. If claimant were seeking leave to file a late claim, it would be denied
as unnecessary (Ne Jame v State of New York, 20 Misc 2d 820).
CPLR 3025 states that permission to amend a claim shall be freely given upon
such terms as may be just. The Court notes that if claimant were denied leave
to file an amended claim, claimant could simply withdraw the current claim and
file a new claim. Therefore, in an effort to further this case along toward a
resolution, the Court grants claimant permission to serve and file an amended
claim. Claimant shall serve and file the amended claim within thirty (30) days
of the date of the filing of this decision and order. Claimant shall serve and
file the amended claim in accord with Court of Claims Act §11.