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
). 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 ). 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,
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
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.