New York State Court of Claims

New York State Court of Claims

BALACKY v. STATE OF NEW YORK, #2000-018-006, Claim No. 100866, Motion No. M-60210


Claimant brought a motion pursuant seeking permission to file a late claim, or in the alternative deeming the claim, filed simultaneously with the motion, timely filed. Claim arises from Claimant's treatment at various correctional facilities for complaints related to prostate cancer, which was not timely diagnosed. Defendant did not answer the existing claim. Court found that failure to timely answer claim resulted in a waiver of any defense or objection to the timeliness of the claim pursuant to Court of Claims Act §11(c). Therefore, claimant may proceed with the existing claim and the motion is denied as unnecessary.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
Assistant Attorney Generalof Counsel
Third-party defendant's attorney:

Signature date:
April 26, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant[1] has brought this motion seeking to have the "Amended Verified Claim for

Damages" filed with the Clerk of the Court on August 12, 1999 deemed timely filed, or in the

alternative he seeks permission to file a late claim in accordance with Court of Claims Act

§10(6). The following documents were submitted on the motion:

Notice of Motion......................................................................................1

Unsigned Affirmation of Joseph Dubinsky, Esquire,

with all exhibits attached thereto[2]...........................................................2

Supplemental medical records from

SUNY Health Science Center[3].................................................................3

Supplemental medical records from Cayuga

Correctional Facility[4]...............................................................................4

Letter from Louis J. Tripoli, Esquire,

Assistant Attorney General, in opposition.................................................5

On March 21, 1998, claimant served a notice of intention in his name alone upon an Assistant Attorney General pursuant to §11 of the Court of Claims Act. On August 10, 1999, a claim naming both himself and his wife as claimants, was served upon an Assistant Attorney General; however, it was never filed. On August 11, 1999, claimant served the amended claim, upon an Assistant Attorney General and filed the same document with the Clerk of the Court of Claims on August 12, 1999.

The notice of intention alleges an ongoing failure of the State to diagnose claimant's prostate cancer up through April 1997; and thereafter, to improperly treat the cancer through February 27, 1998, the date claimant alleges is the accrual date. It also alleges loss of services on behalf of claimant's wife.

The amended claim filed by claimant seeks damages as a result of the medical malpractice of the defendant in failing to administer a PSA test to diagnose prostate cancer, failing to conduct adequate and timely examinations of claimant's prostate, failing to take appropriate history of claimant's urinary complaints, failure to heed the history and complaints given, failure to make proper and timely referrals, and failure to mandate a policy requiring a PSA test for all male inmates over the age of 50 years. Claimant alleges that despite on-going treatment for urinary problems defendant failed to timely give a PSA test; and as a result, his prostate cancer was not diagnosed earlier resulting in the cancer spreading beyond the prostate. Claimant asserts two causes of action for alleged malpractice, one cause of action arises as a result of his medical care at various correctional facilities from February 1992 through February 20, 1997, and thereafter; the second cause of action arises from his care at the State University of New York Health Science Center (hereinafter SUNY) from May 3, 1995 through April 11, 1996, on referral from the correctional facilities. Based upon the continuous treatment doctrine, claimant alleges that the notice of intention and amended claim were timely served and/or filed.

Before the Court decides the motion, it must first determine the timeliness of the filed amended claim. The Court does not have the power to deem an untimely claim timely, the only remedy is a late claim motion pursuant to Court of Claims Act §10(6). If the existing claim is timely, the late claim application is moot. In an effort to avoid dismissal for an untimely claim, claimant's attorney filed the motion simultaneously with the amended claim.

Whether a claim is timely is an issue which must be preserved to prevent waiver. Prior to 1990, the timeliness of a claim involved an issue of subject matter jurisdiction and thus untimeliness could be raised and addressed at any time. (L 1990, ch 625; Court of Claims Act §11(c); Finnerty v New York State Thruway Auth., 75 NY2d 721; Trayer v State of New York, 90 AD2d 263) However, based upon the memoranda in the bill jacket of chapter 625 of the Laws of 1990, from which Court of Claims Act section 11(c) was enacted, the Legislature removed the time limitations of section 10 and the filing and service requirements of section 11 from the scope of subject matter jurisdiction. As a result, since the enactment of section 11(c) of the Court of Claims Act, a defendant is required to raise with particularity any objection or defense based upon a failure to comply with either the time limitations or the manner of service requirements in its responsive pleading or by a motion to dismiss made prior to the date on which a responsive pleading must be served or else that objection or defense is waived. (Court of Claims Act §11(c)) In the Court of Claims a responsive pleading must be served within 40 days after service of the claim unless pursuant to CPLR 3211(a) or (b) a motion to dismiss is made or a stipulation is executed by the parties extending the time to answer. (Uniform Rules for the Ct. of Cl. [22 NYCRR §206.7]) If such a stipulation is reached it must be filed with the clerk of the Court within 10 days after execution. (Uniform Rules for the Ct. of Cl. §206.7)

Since the amended claim was served upon the Attorney General's office on August 11, 1999 the defendant's answer was due on September 20, 1999. As of the return date of this motion, January 5, 2000, no answer or stipulation had been filed. In fact, the only response the Court has received from the defendant is a letter from the assistant attorney general handling the case objecting to the late claim application solely on the basis that claimant has another remedy available; there is a related Supreme Court action pending against one of the doctors who treated claimant at SUNY.

Defendant has had ample time and opportunity to address the timeliness issue by either responding to this motion and raising issue with the application of the continuous treatment doctrine, interposing an answer with an affirmative defense or cross-moving to dismiss the amended claim. No such action has been taken. The Court recognizes that the late claim application and the amended claim were personally served on an assistant attorney general at the New York City office of the Attorney General, and apparently, at least the motion papers, were delayed in reaching the Syracuse office; however this Court adjourned the original motion date of October 6, 1999 to January 5, 2000 and on November 19, 1999 the Court sent a copy of the motion papers to the assistant attorney general handling this case in Syracuse, at his request. Even if this assistant attorney general did not have a copy of the amended claim prior to that date, which is highly probable, as of November 19, 1999 notice was provided through the motion papers that an amended claim had been served and filed. Furthermore, the same assistant attorney general handling the related Supreme Court action in which the statute of limitations defense was interposed, is also handling this matter. (See Claimant's Exhibits 8, 9, and 10)

Although some confusion may have been attributable to the fact that the late claim application was served simultaneously with the amended claim, there is no automatic stay of an action where a late claim motion is filed after a claim has been filed.[5] (See, CPLR 2201) No motion requesting a stay of the action has been made.

Accordingly, based upon defendant's failure to interpose an answer raising the untimeliness of the amended claim as an issue, or to otherwise challenge claimant's selection of an accrual date and assertion that the continuous treatment doctrine applies, this Court finds that any objection or defense to the timeliness of the amended claim has been waived, and the amended claim must stand.

Claimant's motion is hereby dismissed as moot.

April 26, 2000
Syracuse, New York

Judge of the Court of Claims

References to claimant will refer to John Balacky, unless specifically noted.
Yadwiga Balacky's claim seeks only derivative damages.
Despite the attorney's affirmation being unsigned, the Court has considered the factual information set forth in it because Claimant's affidavit, Exhibit 1, adopts all of the facts as set forth in the affirmation.
Submitted by leave of Court.
Submitted by leave of Court.
A statutory stay arises or is authorized upon motion:
Pending appeal (CPLR 5519; F. Ct. §1112; V&T Law §262; Pub. Serv. Law §112); Pending adminstrative review (Gen. City Law §81-a; Lab. Law §101, 103; CPLR 7805; Alco. Bev. Cont. Law §121);
For death, removal or disability of attorney (CPLR 321);
To stay arbitration (CPLR 7503);
To change venue or for removal (CPLR 511, 326);
Failure to provide security for costs (CPLR 8502);
Proceeding to recover real property (RPAPL §753);
Default payment of alimony or counsel fees (DRL §239);
Stay of trial where attorney is a legislator (Jud. Law §469);
Discovery proceedings upon a CPLR 3211, 3212, 3213 motion (CPLR 3214);
See also CPLR 2201.