New York State Court of Claims

New York State Court of Claims

CANDELARIA v. THE STATE OF NEW YORK, #2001-007-078, Claim No. None, Motion No. M-62662


Claimant's application for permission to late file a claim denied because the motion was not served before the expiration of the Statute of Limitations.

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):

John L. Bell
Claimant's attorney:
Juan Candelaria, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General (Kathleen M. Resnick, Esq., Assistant Attorney General, of Counsel)
Third-party defendant's attorney:

Signature date:
January 9, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has made an application for an order granting him permission to late file a claim pursuant to Court of Claims Act § 10(6) and to proceed as a poor person pursuant to CPLR 1101. The return date of the motion was December 20, 2000. The following papers were read and considered by the court:

Notice of Motion, Application to Proceed In Forma
Pauperis, Affidavit of Claimant, Proposed Claim 1, 2, 3, 4

Affirmation in Opposition of Kathleen M. Resnick, Esq. 5

Claimant's primary contention is that he did not receive proper medical care from January 15, 1992 to July 28, 1997 while he was incarcerated at Clinton Correctional Facility (hereinafter Clinton) and that, as a result, he developed chronic renal failure and end-stage renal disease. Claimant further seeks to impute to defendant the alleged improper care he received at St. Agnes Hospital in White Plains, where he was sent by the Department of Correctional Services (hereinafter DOCS) for treatment between October 29, 1997 and November 6, 1997.

Claimant was received into DOCS' custody in December 1989. He states that, at such time, he was confined to a wheelchair because of injuries sustained prior to his incarceration. He asserts that he also suffered from neurogenic bladder conditions and that initial medical screening conducted when he was incarcerated revealed high levels of blood and protein in his urine. In early 1990, claimant was transferred to Green Haven Correctional Facility (hereinafter Green Haven). At Green Haven, claimant participated in a federal class action challenging the medical care provided at such facility. The federal action reportedly resulted in a consent decree regarding medical services to disabled inmates. In January 1992, claimant was transferred to Clinton. Claimant asserts that he was incorrectly characterized by the Clinton medical staff as manipulative and a malingerer, and therefore that he did not receive adequate care while housed at such facility despite filing complaints with numerous individuals. According to claimant, in July 1997 a federal judge found that the initial transfer of claimant from Green Haven to Clinton was inconsistent with the consent decree and the judge directed claimant to be returned to Green Haven. Claimant was transferred to Green Haven on July 28, 1997.

Claimant was sent from Green Haven to St. Agnes Hospital on several occasions for treatment. On October 29, 1997, he was ostensibly admitted to St. Agnes Hospital and shortly thereafter he was informed that he had end-stage renal disease, necessitating treatment with hemodialysis. Claimant commenced hemodialysis treatment on November 6, 1997. According to claimant, the cause of his chronic renal failure and end-stage renal disease remained unknown at such time.

In December 1997, claimant was transferred to Elmira Correctional Facility because such facility was equipped to provide him with hemodialysis treatment. Shortly thereafter, claimant commenced an action in federal court against various individuals from Green Haven alleging that such individuals had acted with deliberate indifference to his medical conditions. The federal action proceeded to a trial before a jury in July 2000. According to claimant, an expert witness opined at trial that claimant's condition had not been caused by culpable conduct at Green Haven, but was caused by the lack of proper treatment while claimant was at Clinton between January 1992 and July 1997. The federal action was dismissed and claimant has now moved for permission to late file a claim based primarily upon alleged improper care while he was housed at Clinton.

Court of Claims Act § 10(6) sets forth the statutory requirements for a motion to late file a claim. Before the court can consider the various factors set forth in section 10(6), it is incumbent upon claimant to establish that the underlying claim is not barred by the germane Statute of Limitations (Court of Claims Act § 10[6]; Arbor Hill Partners v New York State Commr. of Hous. & Community Renewal, 267 AD2d 675, 677; Marine Midland Bank v State of New York, 195 AD2d 871, 872, lv denied 82 NY2d 661). Claimant argues that the alleged facts give rise to causes of action grounded in negligence and medical malpractice. The Statute of Limitations for such causes of action are three years and two-and-a-half years, respectively (CPLR 214, 214-a). Claimant further asserts that the Statute of Limitations should be tolled by the continuous treatment doctrine.

The court will first consider whether the alleged conduct can be properly characterized as supporting a negligence cause of action. A cause of action sounds in medical malpractice and not ordinary negligence when the purported acts or omissions relate to matters of medical science requiring special skills not ordinarily possessed by laypersons (Matter of Barresi v State of New York, 232 AD2d 962, 963; Miller v Albany Med. Ctr. Hosp., 95 AD2d 977, 978). Scenarios that have been held to fall within the ambit of negligence – even though occurring within the context of providing health care services – include: scalding a patient with a hot water bottle (Phillips v Buffalo Gen. Hosp., 239 NY 188); leaving an electric light bulb under the sheets (Dillon v Rockaway Beach Hosp. & Dispensary, 284 NY 176); and leaving a postoperative patient unattended in a bathroom (Coursen v New York Hosp.-Cornell Med. Ctr., 114 AD2d 254). Here, claimant alleges that defendant failed to provide him with proper medical care, causing his health to deteriorate until hemodialysis treatment became necessary. Whether the care afforded claimant fell below the accepted standard of care and, if so, whether such conduct was the proximate cause of his current condition are determinations beyond the common day experience of laypersons. Claimant has failed to set forth a viable negligence cause of action and therefore the three-year Statute of Limitations does not apply.[1]

Claimant seeks to preserve his claim for medical malpractice by invoking the continuous treatment doctrine. The continuous treatment doctrine serves to toll the running of the Statute of Limitations in certain medical malpractice actions (CPLR 214-a; McDermott v Torre, 56 NY2d 399; Borgia v City of New York, 12 NY2d 151). A key axiom of the doctrine is that, rather than require that treatment be interrupted by litigation, it is in the patient's interest to continue treatment with the one who may be in the best position to identify and correct a problem (Nykorchuck v Henriques, 78 NY2d 255, 258). The doctrine thus requires an ongoing relationship of trust and confidence between the patient and physician (Coyne v Bersani, 61 NY2d 939, 940; Fox v Glens Falls Hosp., 129 AD2d 955, 956). A claimant who seeks to use the doctrine to save an otherwise time-barred action bears the burden of proving the applicability of the doctrine (see, Cox v Kingsboro Med. Group, 88 NY2d 904; White v Murphy, AD2d [Third Dept., Nov. 28, 2000]).

The fact that a claimant was incarcerated and thus sent to treating physicians by the State or received treatment at various correctional facilities does not necessarily establish continuous treatment imputable to defendant (Salquerro v State of New York, 212 AD2d 827; Ogle v State of New York, 142 AD2d 37; Howard v State of New York, 96 AD2d 656; but see, Kelly v State of New York, 110 AD2d 1062). Indeed, in Howard (supra), a case with some similarities to the one at bar, the Appellate Division, Third Department, held:
[T]here is no merit to claimant's contention that since he is still receiving treatment for his kidney disease while in a State prison, the continuing treatment doctrine applies. Under this doctrine, where a doctor commits malpractice but continues to treat the patient for the same condition or complaint, the Statute of Limitations does not start to run until the doctor's treatment ends * * *. The rationale behind this rule is that a patient who is receiving corrective treatment from a physician should not be expected to interrupt that ongoing treatment in order to sue the physician before the expiration of the Statute of Limitations * * *. Clearly, this rationale has no application in the instant case because, after December of 1977, claimant was no longer being treated by the doctors who had treated him in Clinton Correctional Facility, where the alleged malpractice occurred. Furthermore, since he is still in the prison system, the commencement of an action would have in no way interrupted any treatment which his present doctors were mandated to give him and he to receive.(Id., at 656-657 [citations omitted]).

In Ogle v State of New York (supra), the court further explained that not every transfer between prisons terminates continuous treatment and there must be "some relevant relationship between the allegedly negligent physician and the subsequent treating physician before subsequent treatment is imputed to the initial physician for tolling purposes" (id., at 39).

Here, claimant has failed to allege a relevant continuous relationship between the care provided at Clinton and his subsequent care. The papers before the court reflect that claimant's medical records were forwarded from Clinton to Green Haven, but no other medical nexus is set forth. Moreover, it can hardly be argued that claimant was concerned about interrupting ongoing treatment with litigation. In 1998, he commenced an action in federal court pertaining to medical care he received following his transfer from Clinton to Green Haven. He cannot now use medical care that has already been the subject of unsuccessful litigation as a conduit to reach back even further in time under the guise of the continuous treatment doctrine. The court concludes that the facts presented fail to establish continuous treatment as a means to preserve the proposed claim.

Claimant has failed to establish that the current motion was filed before the expiration of the Statute of Limitations and thus this court has no authority to consider the merits of his application for permission to late file a claim (Court of Claims Act § 10[6]).[2]

Claimant's additional application for permission to proceed as a poor person is moot.

It is

ORDERED that claimant's motion is denied.

January 9, 2001
Plattsburgh, New York

Judge of the Court of Claims

[1] The court further notes that even assuming arguendo that the three-year Statute of Limitations for negligence was applicable, it would be of little assistance to claimant. The current motion was filed on October 16, 2000. All alleged conduct at Clinton Correctional Facility occurred more than three years before such date. The continuous treatment doctrine cannot be invoked to toll a claim for ordinary negligence. Although claimant alleges that culpable conduct occurred between October 29, 1997 and November 6, 1997 while he was at St. Agnes Hospital, the proposed claim fails to set forth facts supporting a cause of action for negligent conduct during such time.
[2] The Court notes that, even if it could consider the germane statutory factors, claimant's motion would face a formidable obstacle because of his failure to include an affidavit or affirmation from a medical expert addressing the merits of his proposed claim (see, Schreck v State of New York, 81 AD2d 882; Favicchio v State of New York, 144 Misc 2d 212, 213).