New York State Court of Claims

New York State Court of Claims

BOBOLIA v. THE STATE OF NEW YORK, #2008-029-052, Claim No. None, Motion No. M-75781


Claimant, holder of power of attorney for her mother, who suffers from Alzheimer’s disease, may not proceed pro se but must appear by counsel. A power of attorney does not authorize what would, in effect, be the unauthorized practice of law.

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):

Claimant’s attorney:
Defendant’s attorney:
ANDREW M. CUOMO, ATTORNEY GENERALBy: Jyotsna Gorti, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 17, 2008
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant seeks permission to file a late claim on behalf of her elderly mother, who suffers from advanced Alzheimer’s disease and is incapable of acting on behalf of herself. On May 15, 2003, Elizabeth Soronen executed a durable general power of attorney pursuant to Gen. Ob. Law § 15-1502 appointing claimant and claimant’s sister, Carole A. Marvin, to act jointly as her “attorney-in-fact.” Ms. Marvin has submitted an affidavit in support of the motion.

The amended proposed claim alleges that Elizabeth Soronen developed decubitus ulcers due to the negligence of the personnel at the New York State Veterans’ Home at Montrose between January 2, 2008, when she was first admitted to the home, and January 31, 2008, when the ulcers were first noted. Claimant first complained to the New York State Department of Health by letter dated March 14, 2008, within seven weeks of accrual of the claim. However, she did not file a claim or notice of intention to file a claim within 90 days of accrual and did not act until after she received a letter from the Department of Health, dated October 6, 2008, that she describes as “substantiating” her complaint regarding the care her mother received at the Veterans’ Home. She now seeks permission to file a late claim pursuant to Court of Claims Act § 10(6).

In opposition to the motion, defendant raises a number of arguments. First, defendant argues that the requirements of Court of Claims Act § 10(3) must be “strictly construed,” that “nothing less than strict compliance with the jurisdictional requirements of the Court of Claims Act is required” and that [c]laimant has failed to comply with the Court of Claims Act § 10(3) and the [c]laim must be dismissed” (Affirmation in Opposition, ¶ 8). The court notes, in response to this string of non sequiturs, that what is before the court is not a claim that must be “dismissed” but a request for relief pursuant to § 10(6), a request that is based, as are all requests for such relief, on claimant’s recognition that she did not comply with § 10(3). [1]

Equally unavailing is defendant’s reliance upon a 1971 appellate division decision in support of the proposition that § 10(6) “allows the Court of Claims to permit a late filing of a claim when the State has not been substantially prejudiced if the claimant shows a reasonable excuse for the failure to file within the ninety-day period” (Affirmation in Opposition, ¶11, citing Bommarito v State of New York, 35 AD3d 458, 4th Dept 1971). The court in that case was describing the law prior to the enactment of § 10(6), which was added to the Court of Claims Act in 1976 for the express purpose of amending the law as cited in the quoted excerpt and eliminating any sine qua non for late filing relief, instead leaving the matter to the discretion of the court after a balancing of all relevant factors. [2]

The relevant factors include whether claimant’s delay was excusable, whether defendant had timely notice of and the opportunity to investigate the relevant allegations, whether defendant would suffer substantial prejudice should the motion be granted, whether the proposed claim has the appearance of merit and whether claimant has an alternate remedy. Claimant argues that she did not act until receipt of the October 6, 2008 Department of Health report indicating that claimant’s “allegation of Quality of Care/Treatment - Pressure Sores is substantiated” (Exhibit 4). While claimant could have served a notice of intention prior to her receipt of the report, the court need not decide whether claimant’s failure to do so was excusable since the other five statutory factors so clearly weigh in favor of granting the motion.

Claimant’s first complaint to the Department of Health was within the 90-day statutory period. In response to that complaint, defendant conducted an investigation and apparently concluded that its employees were at fault. Such is sufficient, at this point, to establish that defendant was aware of the relevant facts within 90 days of their occurrence, that defendant will not suffer any prejudice by virtue of claimant’s failure to serve a claim or notice of intention within the 90-day period and that the claim has the appearance of merit within the meaning of the statute (Manner of Santana v New York State Thruway Auth., 92 Misc 2d 1). The justification for the exercise of this court’s discretion to grant relief is facially apparent.

Claimant apparently seeks to represent her mother pursuant to the power of attorney, something she cannot do. “New York law prohibits the practice of law in this state on behalf of anyone other than himself or herself by a person who is not an admitted member of the bar, regardless of the authority purportedly conferred by execution of a power of attorney” (Field v Cronshaw, 138 AD2d 765 [2d Dept 1988]). “Although [Gen. Ob. Law] § 5-1502H authorizes an agent holding a sufficient power of attorney ‘to assert and prosecute before any court . . . any cause of action . . . which the principal has, or claims to have, against any individual,’ that statute only permits the agent to hire on behalf of her principal . . . [citation omitted], not to commence an action pro se in the name of the principal” (Megna v U.S. Dept. of the Navy, 317 F Supp 2d 191 [EDNY 2004]; see also Matter of Stokes v Village of Wurtsboro, 123 Misc 2d 694 [Sup Ct Sullivan Co., 1984]).

While it is apparent that the papers before the court were prepared by an attorney, the motion papers were styled as if claimant intends to appear pro se and the attorney’s name is not mentioned other than in the affidavit of service. As noted, although it is clear that claimant is entitled to relief pursuant to § 10(6), the power of attorney does not authorize her to practice law and she must appear by counsel. However, rather than require needless repetitive motion practice, the court will grant the motion and allow an extended period for claimant to retain counsel prior to serving and filing the claim.

Accordingly, the motion is granted. Claimant may serve and file her claim, in accordance with the relevant provisions of the Court of Claims Act and the Uniform Rules for the Court of Claims, within 90 days of the filing date hereof, provided that she appears by counsel duly authorized to practice law in the State of New York.

December 17, 2008
White Plains, New York

Judge of the Court of Claims

Papers considered:

Notice of Motion, Two Affidavits and Exhibits

Affidavit and Amended Proposed Claim

Affirmation in Opposition and Exhibit

Reply Affidavit

[1].By its terms, the statute applies to a “claimant who fails to file or serve upon the attorney general a claim or to serve upon the attorney general a notice of intention, as provided in the foregoing subdivisions, within the time limited therein for filing or serving upon the attorney general the claim or notice of intention.”
[2].“Under prior law the State's limited opposition would have been sufficient to defeat the present motion. Since the enactment of subdivision 6 of section 10 (L 1976, ch 280, eff Sept. 1, 1976) the harsh and confining aspects of the previous rule no longer exist (Kelly v State of New York, 57 AD2d 320; Sessa v State of New York, 88 Misc 2d 454, 458). This court, too, now adds its voice to the death knell of that procedural malady which previously made fiction of the Court of Claims discretion in matters concerning late filing applications. The new statute requires that “the court shall consider, among other factors” (emphasis supplied) the enumerated considerations (Court of Claims Act, § 10, subd 6). Since the “requirements are no longer cast in absolute terms” (Kelly v State of New York, supra, p 327), the reasonable excuse criteria is divisible from the other requirements. Therefore, while an attorney's inadvertence may not be an acceptable excuse for the delay in filing the claim within the 90-day mandated period, a reasonable basis for exercising the court's discretion can be found after considering the other appropriate factors.” (Berger v State Univ. of New York st Stony Brook, 90 Misc 2d 754, 756 [1977]).