Opinion
# 2012-045-003 Claim No. 119940 Motion No. M-80158
02-29-2012
KAY v. THE STATE OF NEW YORK
Synopsis
Defendant's motion to dismiss pursuant to Civil Practice Law and Rules (CPLR) 208, 214-a, 3211(a)(2),(3), (4), and (5) and CPLR 3212. Pro Se litigant brought medical malpractice claim on behalf of his infant daughter 20 years after occurrence. Motion adjourned pending appointment of a guardian ad litem. Case information
UID: 2012-045-003 Claimant(s): MARISSA S. KAY, BY HER FATHER AND LEGAL GUARDIAN, JONATHAN D. KAY Claimant short name: KAY Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 119940 Motion number(s): M-80158 Cross-motion number(s): Judge: GINA M. LOPEZ-SUMMA Claimant's attorney: Jonathan D. Kay, Pro Se Hon. Eric T. Schneiderman, Attorney General Defendant's attorney: By: Ross N. Herman and Bridget E. Farrell, Assistant Attorneys General Third-party defendant's attorney: Signature date: February 29, 2012 City: Hauppauge Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
The following papers were read and considered by the Court on this motion: Defendant's Notice of Motion, Defendant's Affirmation in Support with annexed Exhibits A-L, Claimant's Affidavit in Opposition with annexed Exhibits A-I, Defendant's Reply Affirmation with annexed Exhibit A and Claimant's Reply Affidavit with annexed Exhibits A-D.
Defendant, the State of New York, has brought this pre-answer motion to dismiss the claim pursuant to Civil Practice Law and Rules (CPLR) 208, 214-a, 3211(a)(2), (3), (4) and (5) and CPLR 3212.
Claimant, Marissa S. Kay, by her father and legal guardian, Jonathan D. Kay, filed and served a claim in this matter on June 7, 2011 in which she alleges claims of medical malpractice and negligence against defendant. Claimant alleges that on June 8, 1991, claimant's mother, Donna Kay, was a patient at the University Hospital Health Sciences Center at the State University of New York at Stony Brook. On that date, claimant's mother delivered female twins at 31 weeks gestation by normal spontaneous vaginal delivery. Claimant was the first-born and presented with normal APGAR scores. Following delivery, claimant and her sister, Victoria, were transferred to the Neonatal Intensive Care Unit (NICU). On June 14, 1991, the twins were moved out of NICU and transferred to a step-down unit. Claimant alleges that due to various instances of improper medical treatment she received up until her discharge from the hospital on July 5, 1991 she suffered severe and permanent physical injuries.
Defendant argues that the claim must be dismissed based on a number of grounds. However, the Court finds that prior to addressing the merits of this motion, the issue of appointing Jonathan D. Kay guardian ad litem to represent Marissa S. Kay, raised for the first time in the Reply Affidavit, must be fully heard.
Therefore, for the foregoing reasons, defendant's motion is hereby adjourned pending the formal application by Jonathan D. Kay to be appointed a guardian ad litem in this matter. Accordingly, Jonathan D. Kay shall serve and file his motion to be appointed guardian ad litem in this matter within 60 days of the filing date of this Decision and Order.
February 29, 2012
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims