New York State Court of Claims

New York State Court of Claims

VELEZ v. THE STATE OF NEW YORK, #2002-005-527, Claim No. 102361, Motion No. M-64782


Defendant's motion to dismiss the claim is granted.

Case Information

JOHN VELEZ The caption has been amended, sua sponte, to show the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended, sua sponte, to show the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Claimant's attorney:
John Velez,Pro Se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Timothy P. Mulvey, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 19, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


On March 13, 2002, the following papers, numbered 1 to 6, were read on motion by Defendant for order to dismiss the claim:

1, 2 Notice of Motion, Affirmation and Exhibits Annexed
  1. Opposing Affidavit
4, 5 Filed Papers: Claim, Answer
  1. Claimant's First Amended Complaint, U.S. District Court, dated January 5, 2001
Upon the foregoing papers, this motion is granted.

Defendant seeks dismissal of this claim on the singular ground that it is barred by the applicable statute of limitations.

The claim sounds in medical malpractice relating to surgery performed on or about February 9, 1990, and Defendant recites in this motion that the applicable statute of limitations is two years and six months (CPLR 214-a), and thus the claim, filed on April 25, 2000 (and apparently served on April 24, 2000), was commenced over ten years after the alleged malpractice took place.

A reading of the claim reveals allegations that a metal object was left inside Claimant's body as a result of the said operation. CPLR 214-a allows that "where the action is based upon the discovery of a foreign object in the body of the patient, the action may be commenced within one year of the date of such discovery or of the date of discovery of facts which would reasonably lead to discovery, whichever is earlier."

Claimant's opposition to the motion is woefully inadequate. First, to the extent that Claimant asserts a "foreign object" claim, in opposing dismissal on statute of limitations grounds, he totally fails to even allege the date of discovery of the foreign object, let alone provide any sort of documentary support for such allegation. Thus, he does not allege a date when his cause of action accrued (CPLR 214-a).

Regardless of that omission however, Claimant made an application to me on February 19, 2002, requesting the consolidation of this claim with a pending action in Federal District Court for the Northern District of New York (9:00-CV-1571), and submitted a copy of his First Amended Complaint therein. While I denied that request, my review of that amended complaint, which Claimant verified, is instructive, particularly Paragraph 15 thereof:
On August 7, 1998 plaintiff was sent out to the university Hospital at 750 East Adams Street Syracuse New York to receive an M.R.I. X-ray on his back said X-ray showed bulges in the vertebral body at C 4-5 and Cord Compression at C 5-6 the M.R.I. X-ray also showed at C 6-7 intervertebral level that there is a 2 CM oval region of decreased signal " caused by susceptibility artifact from metal" (emphasis in original).

Thus by Claimant's own sworn assertion, he knew as of August 7, 1998, of the purported foreign object. Since the claim herein was not filed until April 25, 2000, the action was not commenced until more than one year and eight months after Claimant's purported discovery of the foreign object, well beyond the one year statute of limitations period of CPLR 214-a.

Since it appears that the statute of limitations defense, preserved in the Answer as the Sixth Affirmative Defense, is not implicated by the particularity provisions of Court of Claims Act §11(c) (also see, §12[2] and Fahey v County of Ontario, 44 NY2d 934), the claim herein is barred by the statute of limitations (CPLR 214-a). The motion is granted and the claim is dismissed. The trial scheduled for May 1, 2002, at Auburn Correctional facility is canceled.

March 19, 2002
Rochester, New York

Judge of the Court of Claims