New York State Court of Claims

New York State Court of Claims
WHALEY v. THE STATE OF NEW YORK, # 2020-029-040, Claim No. 130729, Motion No. M-95482


The pro se claim alleged that physicians employed by New York State were negligent in delaying and failing to remove claimant's sutures from an earlier surgery, causing her to sustain permanent injuries. Claimant testified at the September 19, 2019 video trial on liability, but she did not present expert medical evidence. The court found the State not liable and dismissed the claim. Four months after judgment was entered, claimant obtained legal representation and moved to set aside the court's decision and judgment pursuant to CPLR 4404 (b), or alternatively to relieve claimant of the judgment pursuant to CPLR 5015 (a). The motion was supported by a Physician Assistant's affidavit that claimant argued was newly discovered expert evidence. The court denied the motion on several grounds and found, inter alia, that the Physician Assistant was unqualified to provide an expert medical opinion as to whether claimant's physicians violated the applicable standard of medical care.

Case information

UID: 2020-029-040
Claimant short name: WHALEY
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 130729
Motion number(s): M-95482
Cross-motion number(s):
Claimant's attorney: LAW OFFICE OF RONALD L. KUBY
By: Rhidaya Trivedi, Esq.
By: Dorothy M. Keogh, Assistant Attorney General
Third-party defendant's attorney:
Signature date: August 6, 2020
City: White Plains
Official citation:
Appellate results:
See also (multicaptioned case)


The claim was filed pro se on December 18, 2017, alleging negligence for the failure to schedule the post-surgical removal of, and delay in removing, claimant's sutures from an earlier surgery to drain/remove a ganglion cyst. A video trial on liability was held on September 19, 2019, at which claimant testified. She did not subpoena any witnesses and presented no documents. The State presented no witnesses. On October 10, 2019, the court issued a decision finding the State not liable, based on claimant's failure to submit expert testimony or other expert evidence to prove that a delay in removing her sutures proximately caused her wrist to become infected, necessitated another surgery, or otherwise injured her. The judgment was entered on October 29, 2019. Claimant, now represented by pro bono counsel, moves to set aside the court's decision and judgment pursuant to CPLR 4404 (b), or alternatively to relieve claimant of the judgment pursuant to CPLR 5015 (a). The State opposes the motion.

Pursuant to CPLR 4404 (b), after a nonjury trial, a court may, on the motion of a party or its own motion, set aside its decision and make new findings of fact or conclusions of law (see Paterno v Strimling, 107 AD3d 1233, 1234 [2013]). Such a motion is within the court's discretion (see Matter of Global Liberty Ins. Co. v Perez, 168 AD3d 592, 593 [1st Dept 2019]; Shelmerdine v Myers, 143 AD3d 1200, 1202 [3d Dept 2016]; Stinton v Robin's Wood, Inc., 45 AD3d 203, 207 [2d Dept 2007], app denied 10 NY3d 708 [2008]). When made by a party, the motion must be filed within 15 days after entry of the court's decision or entry of the judgment (see CPLR 4405). If the motion is untimely, a party must demonstrate good cause for the delay (see Trimarco v Data Treasury Corp., 146 AD3d 1008, 1009 [2d Dept 2017]).

Claimant's motion is untimely as it was not filed until March 10, 2020, over four months after the judgment was entered. Claimant's attorney argues there is good cause for the delay because claimant is incarcerated, lost the full use of her dominant hand due to her injuries, could not afford to obtain a transcript of her trial, had no legal experience, and didn't obtained counsel until late February 2020 (Trivedi Aff. at 2).(1) The State argues in opposition that claimant cannot rely on lack of an attorney or incarceration as an excuse, and she failed to support her claim of physical incapacity with medical evidence.

The inquiry here is similar to deciding a request for an extension under CPLR 2004, which provides: "Except where otherwise expressly prescribed by law, the court may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed." To establish good cause, the party seeking an extension must provide a valid excuse or reason (see Bank of Am., N.A. v Afflick, 172 AD3d 1146, 1147 [2d Dept 2019] [no valid reason for pro se party's delay in submitting opposition papers]; Adotey v British Airways, PLC, 145 AD3d 748, 750 [2d Dept 2016] [no valid excuse for requested extension of time to file opposition papers]; cf. Brill v City of New York, 2 NY3d 648, 652 [2004] [finding movant must articulate a "satisfactory explanation for the untimeliness" to establish good cause for late filing of summary judgment motion pursuant to CPLR 3212(a)]).

The State argues that claimant cannot look to CPLR 2004 because her motion was not made pursuant to the statute. The State's reasoning is flawed. The term "good cause" is used in CPLR 2004 as the standard for deciding an extension request, both before and after the deadline in issue, therefore the statutory language properly informs the court's decision whether claimant has established good cause for submitting her motion past the 15-day deadline. Indeed, the Second Department has explicitly likened deciding a late CPLR 4404 (b) motion on the merits to an extension of time under CPLR 2004 (see Ehrman v Ehrman, 67 AD3d 955, 956 [2d Dept 2009] [finding the Supreme Court "did not improvidently exercise its discretion in effectively extending the time for that motion" and citing CPLR 2004 as support]).

Applying these principles here, the court finds that claimant has not provided a valid reason or satisfactory explanation for her delay. Her arguments based on pro se status and incarceration do raise issues about incarcerated individuals' lack of legal knowledge and their access to legal materials, but this is not the case or the forum for addressing these issues. There is no constitutional right to an attorney in a civil case, and whether incarcerated pro se claimants should be provided with legal support in their Court of Claims actions is a matter for the legislature to address, not the courts. The court would also be more inclined to exercise its discretion to excuse claimant's delay if it had been brief, instead of in excess of four months, and her claim had not been pending since 2017. Claimant acknowledges that she filed a notice of appeal pro se, after which she located a pro bono attorney (initially for the appeal) "through friends, family, and her organizational affiliations" (Memorandum of Law at pg. 9). Claimant does not explain why she could not have made similar efforts earlier, or what efforts, if any, she undertook to locate an attorney (pro bono or contingency) or to discover her options post-judgment. "[A]lthough courts will routinely afford pro se litigants . . . some latitude, a litigant's decision to proceed without counsel does not confer any greater rights than those afforded to other litigants" (Bank of Am., N.A. v Afflick, 172 AD3d 1146, 1147 [2d Dept 2019], quoting Mirzoeff v Nagar, 52 AD3d 789, 789 [2d Dept 2008] [internal quotation marks omitted]).

In this matter, claimant's incarceration and her ignorance of the law do not excuse her delay.

As for claimant's assertion that she lost the use of her "dominant arm," she fails to specify her limitations, and she does not support her claim of incapacity either with a physician's affidavit or with medical records as required by law (see Cabral v State of New York, 149 AD2d 453 [2d Dept 1989]; Cobb v State of New York, 2017 NY Misc LEXIS 5396). The affidavit claimant submitted to support her motion is by a Physician's Assistant, not a physician (discussed below), and the affiant does not attest to having examined claimant, or to the specifics of claimant's asserted incapacitation.

The court finds claimant has not established good cause for missing the 15-day deadline in CPLR 4405. In any event, even if the court were to reach the merits of claimant's motion, the motion would be denied, both because claimant has not shown that she was somehow deprived of a fair trial, and she has not presented newly discovered evidence that if introduced at trial, would have likely produced a different result. The latter reason also applies to claimant's motion to vacate the judgment pursuant to CPLR 5015(a), which does not have a filing deadline.

"A new trial should be granted in the interests of justice only if there is evidence that substantial justice has not been done, as would occur, for example, where . . . there is newly discovered evidence" (Gomez v Park Donuts, Inc., 249 AD2d 266, 267 [2d Dept 1998]; see Mangra v Mangra, 170 AD3d 1156, 1159 [2d Dept 2019] [to grant relief based on newly-discovered evidence, the movant must show that it could not have previously discovered the evidence]). However, a CPLR 4404 (b) motion is not limited to situations where new evidence is discovered (see e.g. Paterno v Strimling, 107 AD3d 1233, 1234 [3d Dept 2013] ["Just as the failure to submit an issue to a jury can constitute an error of law, a court's decision after a nonjury trial that misapprehends the theory of liability and fails to address a key component thereof can provide a ground for the court to set aside its decision . . ."]).

"Pursuant to CPLR 5015 (a), '[t]he court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of: [. . .] 2. newly-discovered evidence which, if introduced at the trial, would probably have produced a different result [. . .].' In order for relief to be granted under CPLR 4404 (b) or 5015 (a) (2) based on newly-discovered evidence, the movant must show that it could not have previously discovered the evidence" (Da Silva v Savo, 97 AD3d 525, 526 [2d Dept 2012] [quoting CPLR 5015 (a)(2)]; see Mangra at 1158-1159).

Claimant makes several arguments. She asserts that by not allowing her to subpoena her treating doctor, the court deprived her of expert testimony she needed to prove medical malpractice because she could have examined the doctor as an expert. The court disagrees. She argues that the court misunderstood her request, made for the first time at trial, that the court issue a subpoena for the testimony of Dr. O'Dell, her treating physician at Mount Vernon Hospital. At trial, the court admitted claimant's medical records attached to her claim then asked claimant, "do you have any other witnesses under subpoena today?" Claimant responded, "I, this is my first time, so I didn't know that I could subpoena somebody, so if you can subpoena my Dr. O'Dell, he's the one that called 911 and remembers these statements" (see trial transcript, Exh. B: 9-10). The discussion continued:

"THE COURT: Well, Dr. O'Dell, Dr. O'Dell would be coming in, I don't know on what basis, but you cannot subpoena an expert witness, ma'am.

MS. WHALEY: Oh, okay. So I -

THE COURT: Yeah, that's against the rules for everybody.

MS. WHALEY: Okay. So I don't understand what you're saying.

THE COURT: What I'm saying, is you wouldn't have been able to subpoena him as an expert, in any event. You can't subpoena an expert witness.

MS. WHALEY: Okay. Okay.

THE COURT: All right. Okay. That said, do you have any other witnesses, no?

MS. WHALEY: No" (id. at 10).

"It is well settled that a plaintiff in a medical malpractice action may call as a witness the defendant doctor and question him or her as an expert witness" (Vega v LaPalorcia, 281 AD2d 623, 624 [2d Dept 2001]; see e.g. McDermott v Manhattan Eye, Ear & Throat Hosp., 15 NY2d 20 [1964]). However, claimant has not submitted any evidence that the Dr. O'Dell was employed by defendant New York State, so to question him as an expert claimant would have needed to retain him as an expert. Claimant could possibly have subpoenaed him as her treating physician if that was his status, but she still would have needed expert testimony to establish the elements of causation and deviation from the proper standard of care.

Claimant also argues that the court erred in its decision by finding claimant needed expert testimony to prove her negligence claim. The court disagrees. Claimant does not take issue with the court's findings of fact, which briefly were that at least some of the sutures were left in her wrist, and there was a likelihood that none of her sutures were removed. Claimant insists that only common knowledge is required to conclude the delay or failure to remove the sutures proximately caused her wrist to become infected well after the surgery. However, as the court stated in the decision, claimant needed expert testimony to prove that the failure to remove the sutures from the first surgery was negligent or that the negligence proximately caused the infection in claimant's left wrist. That type of determination involves knowledge of applicable medical standards for suture removal in the particular circumstances, and knowledge of the factors related to infectious diseases, neither of which is determinable by a lay person based on common knowledge (see Tatta v State of New York, 19 AD3d 817, 818 [3d Dept 2005], lv denied 5 NY3d 712 [2005]; Wells v State of New York, 228 AD2d 581, 582 [2d Dept 1996], lv denied 88 NY2d 814 [1996]). Claimant has not cited any decisions compelling a different conclusion, whereas in opposition the State cites to a 2019 decision by Judge DeBow of the Court of Claims that is directly on point (see Young v State of New York, UID No. 2019-038-110 [Ct Cl, DeBow, J., 2019] [where the claimant alleged pins left in post-surgery were not removed then popped through skin, the court found expert testimony needed regarding when to remove pins]). Claimant also does not dispute that the second surgery was exploratory in nature and no retained sutures were found. Claimant received a fair opportunity to prepare and present her case. The court finds no basis to exercise its discretion and set aside the judgment under CPLR 4004 (b).

Finally, claimant argues the judgment should be vacated pursuant to CPLR 5015 (a)(2) based on newly discovered evidence in the form of an affidavit by Physician Assistant Elizabeth Horowitz. The Affidavit is not "newly discovered" within the meaning of the statute. To be considered "newly discovered," the evidence must have been "in existence, but undiscoverable with due diligence at the time of the original order or judgment" (Munoz v O'Connor-Gang, 154 AD3d 700, 702 [2d Dept 2017]; EMC Mortg. Corp. v Asturizaga, 150 AD3d 824 [2d Dept 2017] [finding documentary evidence not in existence at time of judgment was not newly discovered]). Claimant does not assert that the affidavit was in existence prior to the judgment. Her position is that due to her incarceration, poverty and lack of legal knowledge or help, she was not able to locate an expert like Ms. Horowitz earlier. The court has already addressed this issue. There were no external impediments to claimant finding a lawyer in the same manner she now has long before her trial.

Even if considered to be newly discovered evidence, the opinions Ms. Horowitz expresses in her affidavit would not have produced a different result at trial, which a party moving to vacate a judgment must establish to be successful on the motion (see M&T Bank v Crespo, 181 AD3d 667, 668 [2d Dept 2020]; OneWest Bank v Galloway, 148 AD3d 818, 819 [2d Dept 2017]). The court's conclusion is not based on Ms. Horowitz' professional experience, which she describes in her affidavit.(2) However, the foundation for her opinions is not sufficient. She attests to reviewing claimant's "medical records" without specifying which records, she did not examine claimant at any time, and she does not provide a factual basis for her opinion that defendant's failure to remove the sutures caused her arm to become infected and for her to have a second surgery. A Physician Assistant, even one who is experienced and skilled, is also not a licensed physician. Ordinarily, the requisite standard of care which a physician owes to his patient must be established by expert medical testimony (see Koehler v Schwartz, 48 NY2d 807, 808 [1979]). In Boltyansky v New York Community Hosp., the Second Department found that a registered nurse was not a medical doctor and lacked the qualifications to render a medical opinion as to the relevant standard of care, and whether the defendant deviated from such standard (175 AD3d 1478, 1479 [2d Dept 2019]). It is possible that under different circumstances, a Physician Assistant could be qualified to give an expert opinion as to the relevant standard of medical care by a physician. The court is aware of the general legal principle that " '[t]he competence of an expert in a particular subject may derive from long observation and real world experience, and is not dependent upon formal training or attainment of an academic degree in the subject' " (People v Okonkwo, 167 AD3d 657, 658 [2d Dept 2018], lv denied 32 NY3d 1208, quoting Miele v American Tobacco Co., 2 AD3d 799, 8026 [2d Dept 2003]). However, this is not such a case, particularly since there is nothing to indicate Ms. Horowitz' ability to give expert testimony as to causation.

Accordingly, the court denies claimant's motion to set aside and vacate the judgment under CPLR 4404 (b) and CPLR 5015 (a)(2).

August 6, 2020

White Plains, New York


Judge of the Court of Claims

Papers considered:

Notice of Motion, Affirmation in Support, Memorandum of Law and Exhibits

Affirmation in Opposition and Exhibits

Affirmation in Reply

1. Affirmation of Rhidaya Trivedi, Esq.

2. Although she refers to an attached CV, none was submitted with the motion papers.