New York State Court of Claims

New York State Court of Claims

WANG v. THE STATE OF NEW YORK, #2008-045-003, Claim No. 114185, Motion Nos. M-74029, M-74030, M-74099, M-74124


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):
M-74029, M-74030, M-74099, M-74124
Cross-motion number(s):

Claimant’s attorney:
Michael J. Wang, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo, Attorney GeneralBy: Toni E. Logue, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 17, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered by the Court on these motions: Defendant’s Notice of Motion to Dismiss dated September 25, 2007, Defendant’s Affirmation in Support with annexed Exhibit A, Claimant’s Notice of Motion dated September 27, 2007, Claimant’s Affidavit in Opposition with annexed documents, Defendant’s Affirmation in Opposition dated October 5, 2007 with annexed Exhibits A-C, Claimant’s Notice of Motion dated August 20, 2007 and filed October 5, 2007, Claimant’s Notice of Motion dated October 15, 2007 with annexed documents, Defendant’s Affirmation in Opposition dated November 7, 2007 and the filed Claim.

Defendant, the State of New York, has moved to dismiss the claim in this matter which was filed on September 4, 2007 and assigned claim number 114185 by the Clerk of the Court of Claims.

At the outset, the Court notes that the original caption in the claim lists “Stony Brook University Hospital (SUNY), Peter Glass, as individual & as Chairman of Dept., Frederick Schiavone, an individual & as Associate Dean, United States Medical License Examination Secretariat” as defendants in this matter. However, the Court of Claims is a court of limited jurisdiction wherein claims primarily seeking monetary damages against the State of New York are brought (see Court of Claims Act § 9). It is well settled that the State of New York is the real party in interest for claims against SUNY (Colombo v Schwartz, 15 AD3d 522 [2d Dept 2005]; Graham v Stillman, 100 AD2d 893 [2d Dept 1984]). It is equally clear that “the State [of New York] is the real party in interest where an action against a state officer is for conduct undertaken in an official capacity and in the exercise of an official governmental function” (Woodward v State of New York, 23 AD3d 852, 856 [3d Dept 2005]). The Court of Claims does not have jurisdiction over the claims against Peter Glass, individually, Frederick Schiavone, individually, and the United States Medical License Examination Secretariat (see Court of Claims Act § 9). Thus, the Court hereby dismisses the claims against Peter Glass, individually, Frederick Schiavone, individually, and the United States Medical License Examination Secretariat. The Court also amends the caption to reflect the State of New York as the proper defendant in this matter.

Initially, defendant argues that the claim should be dismissed since it was served on the Attorney General’s Office by regular mail as opposed to one of the accepted means of service listed under Court of Claims Act § 11. Defendant also contends that the claim should be dismissed since it was untimely served and filed more than ninety days after the accrual of the action.

Claimant, Michael J. Wang, alleges, inter alia, in his claim that he received his medical degree from a medical college in China in 1982. He states that on June 14, 2000 defendant agreed to employ him as a second year resident physician in its anesthesiology residency training program. By letter dated September 17, 2001, the American Board of Anesthesiology notified claimant that defendant’s Clinical Competency Committee had reported that his grade for clinical competence was unsatisfactory for the six-month period between January 1 and June 30, 2001. Claimant alleges that this information was false and based on discriminatory intent. On December 4, 2001 defendant dismissed claimant from its training program claiming that it had not received verification of his credentials. Claimant states that he was refused reinstatement into the training program even though defendant received verification of his credentials by January 2002. Claimant asserts that defendant made false statements about his credentials which impeded his ability to secure a position in other residency training programs. Claimant also alleges that defendant falsely reported to the New York State Department of Health, Office of Professional Medical Conduct, that claimant had fraudulently practiced medicine and that he suffered from a substance abuse problem. Finally, claimant contends that “[o]n September 24, 2004 co-conspirator USMLE illegally revoked Dr. Wang privilege to take Medical License Examination, prohibit Dr. Wang to seek employment in health care field on basis of SUNY false allegation and defame Dr. Wang that ‘inflation of test score.’”

The Court of Appeals has long held that “suits against the State are allowed only by the State’s waiver of sovereign immunity and in derogation of the common law [and that because of this] statutory requirements conditioning suit must be strictly construed” (Dreger v New York State Thruway Authority, 81 NY2d 721, 724 [1992]). Accordingly, claimants who have not met the service requirements of the Court of Claims Act have not properly commenced their actions (Lichtenstein v State of New York, 93 NY2d 911 [1999]).

Court of Claims Act § 11 requires, in relevant part, that the claim be served by certified mail, return receipt requested. Claimant, Michael Wang, does not dispute that the claim was served by regular mail and an examination of the affidavit of service attached to the filed claim shows that the claim was served by regular mail. Additionally, although claimant argues that a notice of intention was served on the Attorney General’s Office on December 8, 2001, the claim was not filed with the Clerk of the Court until September 4, 2007. Clearly, the claim was filed outside the time periods prescribed by Court of Claims Act § 10. Consequently, this Court has no jurisdiction over the filed claim.

Therefore, for the foregoing reasons, defendant’s motion, M-74029, to dismiss the claim is granted.

In response to defendant’s motion to dismiss, claimant has filed a motion to file a late claim and two motions seeking a jury trial. Claimant mentions the imposition of sanctions against defendant’s attorney in the first jury trial motion. Claimant also states that he is seeking an order granting “reinstalment [sic], the credit petitioner earn[ed] during 2001, compensatory and punitive damage[s]”in his second jury trial motion.

In regard to claimant’s motions seeking a jury trial, it is axiomatic that a jury trial is not available in the Court of Claims (Graham v Stillman, 100 AD2d 893 [2d Dept 1984]; see also Court of Claims Act § 12[3]). Additionally, the record before the Court does not support the imposition of sanctions against defendant’s attorney at this juncture. Finally, to the extent claimant is seeking summary judgment in his second jury trial motion, he has clearly failed to present sufficient evidence to eliminate any material issues of fact from the case. Thus, had the Court reached those motions they would have been denied on substantive grounds. However, given this Court’s dismissal of the claim on jurisdictional grounds those portions of claimant’s motions are denied as moot.

Turning to claimant’s late claim applications contained within motions M-74030 and M-74099, the Court must take into consideration the factors set forth in Court of Claims Act § 10(6) (Bay Terrace Cooperative Section IV, Inc. v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979 [1982]). The factors are not necessarily exhaustive, nor is the presence or absence of any particular one controlling (id.). Those factors are whether the delay in filing the claim was excusable; whether the defendant had notice of the essential facts constituting the claim; whether the defendant had an opportunity to investigate; whether the defendant was substantially prejudiced; whether the claim appears to be meritorious and whether the claimant has any other available remedy. A proposed claim to be filed, containing all of the information set forth in CCA § 11, shall accompany any late claim application.

Claimant’s claim is written in a narrative form as opposed to a properly presented claim with a certain accrual date. However, it appears from a plain reading of the claim that the complained of actions by defendant took place no later than January 2002. Claimant first mentions Court of Claims Act § 10(6) in motion M-74030 which he filed on September 28, 2007. Thus, any conceivable cause of action raised in the claim, with the possible exception of a breach of contract claim, would be time barred by the applicable statute of limitations period (see CPLR Article 2). This determination would also hold true if claimant were asserting any new claims arising out of any actions taken by defendant on September 24, 2004.

The most significant issue to be considered in determining whether or not to grant a late claim motion is that of merit. To permit the filing of a legally deficient claim would be an exercise in futility (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]).

In order for a claim to “appear to be meritorious”: (1) it must not be patently groundless, frivolous, or legally defective, and (2) the court must find, upon a consideration of the entire record, including the proposed claim and any affidavits or exhibits, that there is reasonable cause to believe that a valid cause of action exists. ...[T]he court need only determine whether to allow the filing of the claim, leaving the actual merits of the case to be decided in due course. While this standard clearly places a heavier burden on a claimant who has filed late than upon one whose claim is timely, it does not, and should not, require him to definitively establish the merits of his claim, or overcome all legal objections thereto, before the court will permit him to file (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 11-12 [Ct Cl 1977]).

Claimant has failed to demonstrate that his claim is meritorious. Claimant did not submit any documents showing that there was a contract entered into between himself and defendant or that if there was a contract how the specific terms of the contract were violated by defendant’s actions. It is also significant that claimant has previously litigated his allegations in a separate federal court action. In an order dated February 23, 2006, United States District Court Judge Joanna Seybert, granted defendant’s motion for summary judgment and dismissed claimant’s federal court action. On appeal the United States Court of Appeals for the Second Circuit affirmed the District Court judgment.

Judge Seybert evaluated claimant’s allegations and found in her decision that defendant demonstrated with sufficient evidence that their actions were for non-discriminatory reasons.

Judge Seybert held that defendant demonstrated that there were “serious” questions concerning claimant’s qualifications as a doctor. Judge Seybert continued that no one could verify when exactly claimant graduated from medical school, “if at all,” because claimant refused to authorize a primary source verification of his credentials. Judge Seybert determined that defendant had to fire claimant simply because they could not verify whether claimant was in fact a doctor.

Judge Seybert wrote that:

“Aside from the discrepancies surrounding [claimant’s] medical background and [claimant’s] refusal to authorize SUNY to verify his medical background, Defendants also presented evidence that [claimant] had misrepresented to Defendants where he worked after graduating from medical school, what score he received on the USMLE, and the number of times it took [claimant] to pass the USMLE. Second, [claimant’s] work evaluations were less than satisfactory. Finally, [claimant] refused to participate in remedial programs that would assist and improve his work performance.”

In light of Judge Seybert’s findings claimant must offer more than just unsupported and conclusory allegations to show that his claim is meritorious. Consequently, this Court finds that his claim is without merit.

This Court also finds that claimant has not presented any legally acceptable excuse for the more than five year delay in the filing of his claim. Although defendant has not shown how it has been prejudiced by the delay, claimant was able to pursue an alternative remedy in federal court.

Based upon the foregoing and having considered the statutory factors enumerated in Court of Claims Act §10(6), the Court finds that claimant’s motions, M-74030, M-74099 and M-74124 are denied.

January 17, 2008
Hauppauge, New York

Judge of the Court of Claims