Opinion
# 2021-032-013 Claim No. NONE Motion No. M-95651
01-22-2021
SARA KIELLY v. STATE OF NEW YORK
Sara Kielly, Pro Se Hon. Letitia James, Attorney General By: Kevin A. Grossman AAG
Synopsis
Motion for reconsideration denied.
Case information
| UID: | 2021-032-013 |
| Claimant(s): | SARA KIELLY |
| Claimant short name: | KIELLY |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | NONE |
| Motion number(s): | M-95651 |
| Cross-motion number(s): | |
| Judge: | JUDITH A. HARD |
| Claimant's attorney: | Sara Kielly, Pro Se |
| Defendant's attorney: | Hon. Letitia James, Attorney General By: Kevin A. Grossman AAG |
| Third-party defendant's attorney: | |
| Signature date: | January 22, 2021 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Movant, an inpatient currently confined at the Central New York Psychiatric Center (CNYPC) proceeding pro se, moved for permission to file and serve a late claim alleging causes of action for medical malpractice and negligent hiring and supervision. By Decision and Order dated January 10, 2020, the Court denied the late claim application (Kielly v State of New York, UID No. 2020-032-003 [Ct Cl, Hard, J., Jan. 10, 2020]). Movant now moves for reconsideration of his late claim application, which appears to be a motion to reargue the motion. Defendant opposes the motion.
A motion to reargue is addressed to the sound discretion of the Court and requires the moving party to demonstrate that the Court overlooked or misapprehended matters of fact or misapplied existing law to the facts presented (CPLR 2221 [d]; see Loris v S & W Realty Corp., 16 AD3d 729, 730 [3d Dept. 2005]; Peak v Northway Travel Trailers, 260 AD2d 840 [3d Dept. 1999]; Spa Realty Assoc. v Springs Assoc., 213 AD2d 781 [3d Dept. 1995]). The Court finds that movant has failed to show that it overlooked or misapprehended matters of fact or misapplied the law.
The Court denied movant's late claim application in part due to movant's failure to provide an expert medical opinion to support his claim of medical malpractice (Kielly v State of New York, UID No. 2020-032-003 [Ct Cl, Hard, J., Jan. 10, 2020]). Movant argues that his is exempt from providing an expert medical opinion because pro se litigants are exempt from the requirement that a certificate of merit accompany claims for medical malpractice under CPLR 3012-a. Movant's argument is without merit, as CPLR 3012-a does not exempt a pro se movant from their burden to establish a potentially meritorious cause of action in a late claim application (Poliakova v State of New York, UID No. 2020-045-015 [Ct Cl, Lopez-Summa, J., May 4, 2020]). That burden requires a movant, pro se or represented, to support a late claim application with expert medical evidence (Barnes v State of New York, 158 AD3d 961, 963 [3d Dept. 2018]). Therefore, the Court did not misapply the law as to movant's burden to establish a meritorious medical malpractice cause of action.
To the extent that movant argues that the Court erred in finding the cause of action for negligent hiring and supervision without merit, the Court finds that movant has not established that the Court overlooked or misapprehended matters of fact or misapplied the law.
Based upon the foregoing, movant's motion for reconsideration (M-95651) is DENIED.
January 22, 2021
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims Papers Considered: 1. Motion for Reconsideration, dated March 22, 2020. 2. Attorney Affirmation in Opposition to Claimant's Motion for Reconsideration, affirmed by Kevin A. Grossman, AAG on October 6, 2020, with Exhibits A through C annexed thereto.