New York State Court of Claims

New York State Court of Claims

CHESTNUT v. THE STATE OF NEW YORK, #2001-007-085, Claim No. 102155, Motion No. M-62288 and M-62989


Synopsis


Defendant moved to dismiss upon the ground that the court lacked jurisdiction because the claim was not timely served. Claimant argued the application of the continuous treatment doctrine. Motion granted and claim dismissed.

Case Information

UID:
2001-007-085
Claimant(s):
ROBERT CHESTNUT
Claimant short name:
CHESTNUT
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102155
Motion number(s):
M-62287 and M-62989
Cross-motion number(s):

Judge:
John L. Bell
Claimant's attorney:
Robert Chestnut, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General (Michele M. Walls, Esq., Assistant Attorney General, of Counsel)
Third-party defendant's attorney:

Signature date:
February 13, 2001
City:
Plattsburgh
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant has made an application for an order dismissing the claim upon the ground that the court lacks jurisdiction (Motion No. M-62287). Claimant has made an application for an order directing defendant to respond to disclosure (Motion No. M-62989). The following papers were read and considered by the court:
Motion No. M-62287

Notice of Motion, Affirmation of Michele M. Walls,
Esq., Annexed Exhibits 1, 2, 3


Affidavit in Opposition of Robert Chestnut, Annexed
Exhibits, Letter of Robert Chestnut (dated Sept. 6, 2000) 4, 5, 6

Letter of Michele M. Walls, Esq. (dated Oct. 4, 2000) 7


Letters of Robert Chestnut (dated Oct. 6, 2000 and
Oct. 25, 2000) 8, 9

Motion No. M-62989

Notice of Motion, Affidavit of Good Faith of Robert
Chestnut 1, 2

Affirmation in Opposition of Michele M. Walls, Esq. 3


Both Motions
Filed Papers: Claim, Answer 1, 2

Claimant, an inmate currently incarcerated in the State of Maine, contends he was the victim of medical malpractice occurring between November 1997 and September 1999, while he was in the custody of the New York State Department of Correctional Services. He served a notice of intention to file a claim on February 18, 1998. The notice of intention sets forth claimant's medical chronology from November 25, 1997 to February 8, 1998. A claim was subsequently served upon the Attorney General on February 28, 2000 and filed with the Clerk of the Court of Claims on March 21, 2000. In its answer, defendant asserted as a first defense that the court does not have jurisdiction because the claim was not filed and served in a timely fashion. Defendant has now moved to dismiss upon such ground.

A claimant must file and serve a claim within 90 days of accrual (Court of Claims Act § 10[3]). The time for filing and serving, however, can be extended to two years from the date of accrual if a notice of intention is properly served upon the Attorney General within 90 days of accrual (Court of Claims Act § 10[3]). The requirements of Court of Claims Act § 10 are jurisdictional in nature and therefore are strictly construed (see, e.g., Dreger v New York State Thruway Auth., 81 NY2d 721; Finnerty v New York State Thruway Auth., 75 NY2d 721, 723; Conner v State of New York, 268 AD2d 706). If a claimant fails to comply with the stringent time limitations of Court of Claims Act § 10 and the defendant properly preserves and asserts such failure, the court does not have discretion to disregard the defect (see, Downes v State of New York, 76 AD2d 967).

Claimant seeks to save his claim for medical malpractice by invoking the continuous treatment doctrine. The continuous treatment doctrine tolls 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 requiring treatment to 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 (Allende v New York City Health & Hosps. Corp., 90 NY2d 333; Nykorchuck v Henriques, 78 NY2d 255, 258). The doctrine thus requires an ongoing relationship of trust and confidence between the patient and physician (Young v New York City Health & Hosp. Corp., 91 NY2d 291; Coyne v Bersani, 61 NY2d 939, 940; Fox v Glens Falls Hosp., 129 AD2d 955, 956).

The Appellate Division, Third Department, recently held that an inmate who sought to rely upon the continuous treatment doctrine "clearly severed any continuing relationship of trust in the physician-patient relationship and ended any ‘continuous treatment tolling'" when he served his notice of intention upon defendant (Toxey v State of New York, AD2d [Jan. 25, 2001]; cf., Schloss v Albany Med. Ctr., AD2d [Dec. 14, 2000]). Here, claimant served a notice of intention upon defendant on February 18, 1998. While the service of such document extended the time for commencing a claim, it also terminated the toll of the accrual date afforded by the continuous treatment doctrine. The claim was not served until February 28, 2000 and it was not filed until March 21, 2000. Claimant failed to file and serve his claim within two years of the cessation of the toll of the accrual date (i.e., within two years of the date he served his notice of intention) and thus the claim was untimely. To the extent claimant asserts additional malpractice occurred following the service of the notice of intention, the previously served notice of intention does not afford to subsequently occurring conduct the benefit of a further full two-year extension from the date such subsequent acts occurred. Since defendant has established the merits of its jurisdictional defense the court is constrained to conclude that it must dismiss the claim.

The court's determination that it does not have jurisdiction renders claimant's motion to compel disclosure moot.

It is

ORDERED that defendant's motion (M-62287) is granted and the claim is dismissed; and it is further

ORDERED that claimant's motion (M-62989) is denied.


February 13, 2001
Plattsburgh, New York

HON. JOHN L. BELL
Judge of the Court of Claims