New York State Court of Claims

New York State Court of Claims

WANG v. THE STATE OF NEW YORK, #2008-045-019, Claim No. None, Motion No. M-74387


Case Information

1 1.The caption has been amended, sua sponte, to reflect the State of New York as the proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended, sua sponte, to reflect the State of New York as the proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
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:
May 1, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered by the Court on this motion: Claimant’s “Notice of Claim” with annexed documents and Defendant’s Affirmation in Opposition with annexed Exhibits.

Claimant has brought this motion seeking an order granting permission to file a late claim in this matter pursuant to Court of Claims Act § 10(6). Defendant, the State of New York, has opposed this application.

In a Decision and Order filed February 27, 2008, this Court dismissed claimant’s previously filed claim numbered 114185 on jurisdictional grounds. As part of that Decision and Order the Court denied claimant’s application to file a late claim finding, inter alia, a lack of merit to the proposed claims.

The Court notes that all of the allegations raised in the present application were previously raised in claim 114185. However, claimant has deleted certain references to a breach of contract claim alleged in claim 114185 from the proposed claim attached to this motion. Claimant has also listed different state entities as defendants in the caption of the current proposed claim.

Claimant, Michael J. Wang, alleges, inter alia, in his proposed 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. Lastly, claimant contends, inter alia, that on September 24, 2004 USMLE illegally revoked his privilege to take a medical license examination and prohibited him from seeking employment in the health care field.

Claimant has also attached to his proposed claim a copy of a complaint brought before the Disciplinary Hearing Commission of the New York State Bar. The complaint raises numerous allegations concerning the conduct of the assistant attorney general in her defense of the related underlying matters.

It is well settled that “[t]he Court of Claims is vested with broad discretion to grant or deny an application for permission to file a late claim” (Matter of Brown v State of New York, 6 AD3d 756, 757 [2004]). In determining whether relief to file a late claim should be granted the Court must take into consideration the factors set forth in Court of Claims Act § 10(6) (Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 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 again 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. 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 up until 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]).

As previously stated by this Court in its February 27, 2008 Decision and Order, 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 a memorandum and 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 its 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 it 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 claims, including his assertions regarding the conduct of the assistant attorney general, are 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), claimant’s motion is denied.

May 1, 2008
Hauppauge, New York

Judge of the Court of Claims