New York State Court of Claims

New York State Court of Claims

MITCHELL v. THE STATE OF NEW YORK, #2001-028-0508, Claim No. 100912, Motion No. M-62568


Prison inmate, appearing pro se, whose claim is based on allegations of medical malpractice is entitled to the benefit of the doctrine of continuous treatment (CPLR 214-a) based on his allegations and need not present either expert medical testimony or a certificate of merit (CPLR 3012-a) at the pleading stage.

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:
BY: Saul Aronson, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
January 4, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on defendant's motion for an order of dismissal.

1. Notice of Motion and Supporting Affirmation of Saul Aronson, AAG, filed Oct. 17, 2000, with annexed Exhibits A-C ("Aronson affirmation")

2. Affidavit in Opposition: none received

3. Filed papers: Claim, filed Aug. 18, 1999; Answer, filed Sept. 28, 1999

This claim is brought by an inmate of Auburn Correctional Facility, who is appearing pro se. He seeks compensation for injuries and pain and suffering allegedly caused by improper and/or inadequate medical treatment received from the Department of Correctional Services (DOCS) from April 1995 until June 16, 1999, when he received a needed operation at Syracuse University Hospital. The claim was filed on August 18, 1999; claimant served a notice of intention to file a claim on defendant on June 23, 1999 (Exh A, Aronson affirmation) and subsequently served the claim on August 19, 1999 (id, Exh B).

In its answer, defendant set forth the following as its sixth affirmative defense:

That this Court lacks subject matter jurisdiction over the claim and personal jurisdiction over defendant, the State of New York, as the claim is untimely in that neither the claim nor a notice of intention was served within ninety (90) days of the accrual of the claim as required by Court of Claims Act, Sections 10(3) and 11.

This statement is sufficiently particular to provide notice of the defense of untimeliness in that it includes (1) reference to the time period within which the filing (and/or service) should have occurred and (2) the statutory authority for such requirement. (see, Smith v State of New York, Claim No. 85799, Motion No. M-48029, filed July 20, 1993, Benza, J.; Kanaval v State of New York, Claim No. 86053, Motion No. M-47990, filed July 20, 1993, Benza, J.).

Counsel for defendant now moves for an order dismissing the claim or some portion of the claim as being time-barred both by the relevant provisions of the Court of Claims Act (cited above) and, in addition, by the two and one-half year statute of limitations for actions sounding in medical malpractice (CPLR 214-a) and/or the three year statute of limitations for actions sounding in negligence (CPLR 214). Alternatively, defense counsel seeks dismissal of the entire claim "since in the absence of expert testimony to demonstrate malpractice on the part of the State and/or its agents, claimant fails to meet his prima facie burden of proof as a matter of law" (Aronson affirmation, ¶ 9). As a preliminary matter, the Court notes that the CPLR Article 2 statute of limitations does not become relevant to Court of Claims actions unless and until the claimant seeks permission to file an untimely claim pursuant to Court of Claims Act §10(6). Consequently, that portion of the motion will not be considered at this time. At issue, therefore, are whether the claim or any portion of it is untimely in that it accrued prior to ninety days before August 19, 1999[1] and whether the absence of medical expert testimony requires dismissal of the claim at this juncture as a matter of law.

In his claim, claimant alleges that he was denied adequate and appropriate medical treatment from the time he entered into the custody of DOCS in April 1995 and through all subsequent transfers within the State prison system (claim, ¶¶ 3, 7, 8, 9, 10, 11, 13). In moving for dismissal on the ground of untimeliness, defense counsel relies on claimant's statement that his claim accrued in April 1995 (Aronson affirmation, ¶ 4). It is well-settled, however, that it is not a party's statement regarding the accrual date of a cause of action but, rather, the law regarding such accrual that determines whether or not a claim is timely (see, e.g., Levy v Luss & Co., 267 AD2d 213).

Although defense counsel does not refer to the doctrine of continuous treatment, it is quite evident that it is, or at least may be applicable in this instance. CPLR 214-a provides, as noted above, that actions for medical or other malpractice must be commenced within two years and six months of the act, omission or failure complained of "or last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure." Where there is such a course of treatment, the running of the statute of limitations is tolled until the date of the last treatment (McDermott v Torre, 56 NY2d 399; Borgia v City of New York, 12 NY2d 151). This toll applies to the filing requirements in the Court of Claims as well (Ogle v State of New York, 142 AD2d 37), and where the claimant is a prison inmate, the fact that his treatment was carried out by different personnel and occurred in different facilities does not necessarily bar application of the doctrine (Kelly v State of New York, 110 AD2d 1062). Based on the allegations contained in the claim – allegations that DOCS personnel consistently provided incorrect treatment or failed to provide adequate treatment for a single and continuing medical condition from April 1995 until June 1999 -- and the absence of any factual evidence suggesting that there was a break in treatment, claimant is entitled, at this juncture, to the benefit of the continuous treatment doctrine, and consequently defendant's motion to dismiss on the ground of untimeliness is denied.

That branch of defendant's motion to dismiss because claimant has not provided expert medical testimony to support his claim must also fail.
"As a general rule, expert medical testimony is required to establish a prima facie case of malpractice" (Morgan v State of New York, 40 AD2d 891, affd 34 NY2d 709).
This testimony need not be presented at the time of the initial pleading or, indeed, at any point prior to trial, unless needed to adequately respond to a motion for summary judgment. Where a litigant alleging medical, dental or podiatric malpractice is represented by counsel, the complaint (or, in this court, the claim) must be accompanied by a certificate of merit in which the attorney states that he or she has reviewed the facts of the case, consulted with the appropriate professional and "concluded on the basis of such review and consultation that there is a reasonable basis for the commencement of the action" (CPLR 3012-a[a][1]). Litigants who are not represented by counsel, such as claimant in this action, are not required to submit even this preliminary certificate (CPLR 3012-a[f]).

For the reasons set forth above, defendant's motion is denied.

January 4, 2001
Albany, New York

Judge of the Court of Claims

[1] Claimant's notice of intention alleged that the anticipated claim arose on June 16, 1999. The claim, as noted above, alleged that defendant's negligent/malpractice began in April 1995 and continued until June 16, 1999. Because the claim itself was filed and served within ninety days of June 16, 1999, the Court is concerned only with the allegations contained in that document.