New York State Court of Claims

New York State Court of Claims

HUGHES v. THE STATE OF NEW YORK, #2005-033-152, Claim No. None, Motion No. M-70537


Case Information

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):

James J. Lack
Claimant’s attorney:
Savitt, Krantz & Sellman, P.C.By: Harvey B. Savitt, Esq.
Defendant’s attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Ross N. Herman, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 16, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


This is a motion of Julie A. Hughes (hereinafter “movant”) for “the sole purpose of eliminating a potential technical basis for denying the [previous] application [for permission to file a late claim pursuant to Court of Claims Act §10(6)] and having the Second Department make a decision on the merits by having this court consider the affirmation of Frederick H. Anlyan, M.D. dated October 21, 2004 as part of the proper moving papers herein” (affirmation of counsel in support of motion). The underlying potential claim relates to alleged medical malpractice occurring between February 23, 2003 and August 7, 2003, when movant was surgically treated to repair a hernia at University Hospital at Stony Brook, New York (hereinafter “Stony Brook). The claim of Robert V. Hughes is derivative in nature.

In a decision and order filed December 21, 2004, this Court denied movant’s prior motion for permission to file a late claim (M-68920). It was determined that none of the six factors in Court of Claims Act §10(6) favored movant’s application.

Movant now seeks permission to have her doctor’s affirmation considered by the Court as part of her initial motion pursuant to Court of Claims Act §10(6)[1]. Defendant opposes the motion on two grounds. First, defendant argues that if movant is moving to renew or reargue the initial decision and order (CPLR 2221), then the motion is late. Next, defendant argues that the record is clear that the doctor’s affirmation was part of movant’s reply papers.

According to CPLR 2221:
(d) A motion for leave to reargue:

1. shall be identified specifically as such;

2. shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion; and

3. shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry. This rule shall not apply to motions to reargue a decision made by the appellate division or the court of appeals.

(e) A motion for leave to renew:

1. shall be identified specifically as such;

2. shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and

3. shall contain reasonable justification for the failure to present such facts on the prior motion.

Movant’s application must be viewed as a motion to reargue. The Court must assume that movant is arguing the doctor’s affirmation was overlooked because it was not part of the initial motion papers. However, the Court found no merit to the doctor’s affirmation in the prior decision and order. The affirmation was based upon the doctor’s conversations with counsel. The doctor’s “opinion” was “informal” and speculative. To support a motion for a late claim, an expert’s opinion should be clear and based upon non-hearsay evidence.

In addition, the notice of entry of the Court’s prior decision is dated January 4, 2005 (movant’s Exhibit A). The Court will assume that movant was served with the decision and order and the notice of entry on or about this date.[2] Thus, to be timely, the instant motion should have been served and filed in February 2005.

Accordingly, this Court denies movant’s application.

December 16, 2005
Hauppauge, New York

Judge of the Court of Claims

[1].The following papers have been read and considered on movant’s motion: Notice of Motion dated August 3, 2005 and filed August 8, 2005; Affirmation of Harvey B. Savitt, Esq. with annexed Exhibits A-F dated August 3, 2005 and filed August 8, 2005; Affirmation in Opposition to Motion of Ross N. Herman, Esq. dated August 15, 2005 and filed August 17, 2005.
[2].The Court bases this assumption on the fact that counsel does not raise any problem with the service of the notice of entry.