New York State Court of Claims

New York State Court of Claims

KAY v. THE STATE OF NEW YORK, #2004-033-081, Claim No. 104482, Motion No. M-68295


Case Information

MARISSA S. KAY, an infant under the age of 14, by her father and natural guardian, JONATHAN D. KAY
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Jonathan D. Kay, Pro Se
Defendant's attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Bridget E. Farrell, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 30, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


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 amended claim[1] relating to alleged medical malpractice occurring on July 5, 1991.[2] The 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 of accrual.

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.

September 30, 2004
Hauppauge, New York

Judge of the Court of Claims

[1]The following papers have been read and considered on claimant's motion: Notice of Motion dated April 6, 2004 and filed April 8, 2004; Affidavit in Support of Motion to Amend Claim of Jonathan D. Kay with annexed Exhibit sworn to April 6, 2004 and filed April 8, 2004; Affirmation in Opposition of Bridget E. Farrell, Esq. with annexed Exhibits A-D dated July 8, 2004 and filed July 12, 2004; Affidavit in Response of Jonathan D. Kay with annexed Exhibits A-D sworn to July 23, 2004 and filed July 26, 2004.
[2]The Court finds that date of accrual to be the date claimant was discharged from the continuous treatment hospital.