New York State Court of Claims

New York State Court of Claims

KAY v. THE STATE OF NEW YORK, #2005-033-145, Claim No. 104482, Motion Nos. M-70435, M-70172


Synopsis



Case Information

UID:
2005-033-145
Claimant(s):
MARISSA S. KAY, an infant under the age of 14, by her father and natural guardian, JONATHAN D. KAY
Claimant short name:
KAY
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104482
Motion number(s):
M-70435, M-70172
Cross-motion number(s):

Judge:
James J. Lack
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:
December 7, 2005
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This claim is brought by Jonathan D. Kay (hereinafter "claimant") as the father and natural guardian of Marissa S. Kay, an infant under the age of 14. The claim is based on the alleged medical malpractice of the defendant, the State of New York (hereinafter “State”), at the State University Hospital at Stony Brook, Stony Brook, New York. The alleged malpractice occurred between June 8, 1991, the infant’s birth date and July 5, 1991, the day the infant was discharged.
On April 21, 2003, an amended claim was filed with the Clerk’s Office. Defendant answered in June 2003. Since that time the parties have been actively engaged in discovery. Claimant is pro se.

Claimant seeks to withdraw his claim on behalf of his infant daughter without prejudice[1]. Claimant’s request is based on his daughter’s complicated medical condition; difficulty in obtaining skilled help to care for his daughter; medical problems of other members of claimant’s family; his daughter’s educational and developmental needs; and claimant’s employment situation.

Defendant objects to claimant’s request to discontinue without prejudice. Defendant argues that at the time the amended claim was filed, the facts of the case were over ten years old and difficult to reconstruct. Defendant argues that allowing claimant to discontinue without prejudice would severely prejudice defendant’s ability to defend this matter.

Court of Claims Act §10(5) states that if a claimant is under a legal disability, then a claim can be presented within two years of the removal of the disability.

In the present case, claimant correctly argues that his daughter is an infant and would have the right to bring her case until June 8, 2011. Defendant’s argument of prejudice is without merit. Had claimant never brought the claim until 2011, defendant would have no choice but to defend a timely filed action, albeit a twenty-year-old action.

The Court is aware, due to numerous conferences with the parties, that the parties have each performed a tremendous amount of work to further this case. However, given claimant’s circumstances and his pro se status, the Court believes that justice would best be served in granting claimant’s motion to discontinue without prejudice (CPLR 3217[b]).

Based on the foregoing, claimant’s motion to discontinue (M-70435) is granted and the Clerk of the Court is directed to close the file.

Claimant also has a motion to reargue pending (M-70172)[2]. Claimant’s motion to reargue is dismissed as moot.



December 7, 2005
Hauppauge, New York

HON. JAMES J. LACK
Judge of the Court of Claims




[1].The following papers have been read and considered on claimant’s motion, M-70435: Notice of Motion dated July 13, 2005 and filed July 15, 2005; Affidavit in Support of Motion to Discontinue of Jonathan D. Kay dated July 13, 2005 and filed July 15, 2005; Affirmation in Partial Opposition of Bridget E. Farrell, Esq. dated July 18, 2004 [sic] and filed July 20, 2005; Affidavit in Response of Jonathan D. Kay with annexed Exhibits A-D dated August 10, 2005 and filed August 15, 2005.
[2].The following papers have been read and considered on claimant’s motion, M-70172: Notice of Motion dated May 16, 2005 and filed May 19, 2005; Affidavit in Support of Motion to Reargue of Jonathan D. Kay with annexed Exhibits A-C dated May 16, 2005 and filed May 19, 2005; Affirmation in Opposition of Bridget E. Farrell, Esq. with annexed Exhibit A dated May 24, 2005 and filed May 26, 2005.