The allegations contained in the underlying Claim are too voluminous to repeat
here, but generally allege that Claimant entered the State correctional system
with a known medical condition called Raynaud's Disease for which he received
inadequate medical care during his
Claimant alleges he noticed
ulcers on one of his ankles on August 10, 2000 while incarcerated at Elmira
Correctional Facility (hereinafter "Elmira"). During the approximate two week
period thereafter, Claimant saw a facility nurse and doctor at Elmira. On
August 26, 2000,
Claimant was transferred to
Oneida Correctional Facility (hereinafter sometimes "Oneida") during which time
he continued to complain about and receive treatment for his symptoms. The
Court will not recite all the alleged dates and treatments contained in the
Claim, but suffice it to say that throughout the remainder of 2000 continuing
until the time this Claim was filed on June 18, 2001 Claimant underwent numerous
exams, treatments, and surgeries at area hospitals and Oneida Correctional
Facility. This Claim alleges both medical malpractice and negligence in the
course of the State's treatment of his medical condition. More specifically,
the Claim alleges that the allegations arising between August 10, 2000 through
August 26, 2000 occurred at Elmira Correctional Facility, while the allegations
pertaining to August 26, 2000 through May 30, 2001 occurred at Oneida.
Additional allegations are contained in Claimant's proposed amended claim which
relate to a time period starting on November 21, 2001 on which date Claimant
alleges he began having Raynaud's Disease symptoms relating to his fingers and
which continued in December 2001, January 2002, and February 2002 and culminated
in surgery to amputate his right index finger on January 29, 2002. Claimant
also seeks permission to add two individual defendants, namely Raja Mara, M.D.,
and Superintendent of Programs W.F. Hulihan. These additional allegations all
occurred at Oneida.
Claimant alleges he served a Notice of Intention on the Attorney General's
office by way of certified mail, return receipt requested, on January 8, 2001.
Thereafter, Claimant filed this Claim with the Clerk of the Court on June 18,
2001. It is undisputed that this Claim has yet to be served on the Attorney
General's office leading to the various motions currently pending before this
State's Cross-Motion for Dismissal (Cross-Motion No. CM-65245)
The State moves for dismissal on the grounds this Court lacks jurisdiction
because this Claim has not yet been served on the Attorney General's office
pursuant to CCA 10 and 11. CCA 10 (3) states that when the claimant has
properly and timely served a notice of intention upon the attorney general, then
"[t]he claim shall be filed and served upon the attorney general within two
years after the accrual of such claim." (Emphasis added). So, although the
service of a notice of intention does not obviate the requirement that the Claim
must also be served on the Attorney General's office in compliance pursuant to
CCA 10 and 11, it does extend the time period in which to do so from 90 days to
two years after accrual. (CCA 10 ; Renelique v State of New York, Ct
Cl, June 17, 2002, McNamara, J., Claim No. 102605, Motion No. M-64903).
The State makes two arguments in relation to its dismissal motion. Initially,
the State argued that the Claim was never served upon the Attorney General and
then, upon discovering that a Notice of Intention was served, by arguing that
said service was untimely.
First, the State submits an affidavit from Carol A. McKay, a senior clerk in
the Attorney General's office who avers that: "[b]ased upon my review of the
files in the Office of the Attorney General of the State of New York, Albany
Claims Bureau, I find no record that the Claim in this matter was ever
served on the Attorney General." (Affidavit of Carol A. McKay, ¶ 4;
emphasis added). Indeed, according to Claimant's Affidavit of Service, he only
filed his Claim with the Clerk of the Court and did not serve the same on the
defendant. Notably missing, however, from the State's papers was any
representation relative to the service of a notice of intention. In fact, the
State's papers represented that Claimant's motion for leave to amend was the
first pleading received regarding this matter, thus implying that no notice of
intention was ever received by the State. As the State now concedes, however,
it appears that Claimant did serve a Notice of Intention although the State
never "correlated" that Notice of Intention with this Claim. (Kelley v State
of New York, Motion No. M-65290, Affirmation in Opposition, ¶ 3).
Moreover, this Court's file contains an Affidavit of Service, together with a
copy of the green return receipt card, confirming that a Notice of Intention was
served, by certified mail, return receipt requested, on the Attorney General's
office on January 8, 2001.
Accordingly, the State's revised argument is that the service of this Notice of
Intention was untimely because it was served more than 90 days after the accrual
date of August 26, 2000 and relates solely to allegations occurring at Elmira.
In order to determine whether Claimant's Notice of Intention was timely served
on January 8, 2001 this Court must determine the proper accrual date or dates in
It is well-settled that a medical malpractice claim accrues on the date of the
alleged wrongful act or omission and is governed by a 2 ½ year statute of
limitations. (CPLR 214-a; Nykorchuck v Henriques, 78 NY2d 255, 258).
The continuous treatment doctrine, however, affords an exception to that general
rule by providing that the statute of limitations will not begin to run until
the end of the course of treatment, so long as said treatment is "related to the
same original condition or complaint." (McDermott v Torre, 56 NY2d 399,
405, quoting Borgia v City of New York, 12 NY2d 151, 155). The reasoning
behind the doctrine is critical to its application in any given case, namely
that "[a] patient should not be required to interrupt corrective medical
treatment by a physician and undermine the continuing trust in the
physician-patient relationship in order to ensure the timeliness of a medical
malpractice action...[citations omitted]." (Young v New York City Health
& Hosps. Corp., 91 NY2d 291, 296). That having been said, however, the
Third Department has recognized two situations in which the continuous medical
treatment doctrine is inapplicable which are relevant here and will be discussed
With respect to the allegations occurring at Elmira between August 10, 2000
through August 26, 2000, the State argues that the Notice of Intention served on
January 8, 2001 is untimely because it was served more than 90 days after the
accrual date of August 26, 2000. Although this Court agrees with the State's
ultimate conclusion it is worth noting why the doctrine of continuous medical
treatment does not apply to connect Claimant's treatment at Elmira to his
subsequent treatment at Oneida. The Third Department has stated that "[t]he
continuous treatment doctrine should not be applied simply on the basis that all
of the providers of medical care were employed by the State [citations
(Ogle v State of New York
142 AD2d 37, 39; see also, Howard v State of New York
, 96 AD2d 656;
Candelaria v State of New York
, Ct Cl, January 9, 2001, Bell, J., Motion
No. M-62662). Here, there is nothing in this record nor has Claimant alleged
that he was treated by the same doctors at Oneida that treated him at Elmira.
Consequently, this Court finds that the proper accrual date relative to
allegations of medical malpractice at Elmira is August 26, 2000. As such, the
Notice of Intention served on January 8, 2001 was untimely relative to those
allegations. Consequently, the State's motion to dismiss is granted, in part,
relative to those aspects of the claim alleging medical malpractice and
negligence occurring at Elmira between August 10, 2000 through August 26, 2000.
The Court turns next to the State's dismissal motion relative to the
allegations contained in this Claim of medical malpractice and negligence
occurring at Oneida between August 26, 2000 through May 30, 2001. In the first
instance the Court finds that the Notice of Intention is broad enough to
encompass allegations relating to Claimant's time at Oneida by containing such
allegations as "[u]pon my arrival at Oneida I was not admitted to the infirmary.
Even though I had sores on my feet from walking around without socks." (Notice
of Intention, p 2). With respect to the timeliness issue, the Court finds said
Notice of Intention timely relative to the allegations pertaining to Oneida. In
discussing the policy underlying the continuous medical treatment doctrine the
Third Department has stated that a claimant's initiation of the legal process
"[c]learly 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." (Chestnut v State of New York,
Ct Cl, February 13, 2001, Bell, J., Claim No. 102155, Motion Nos. M-62287 and
M-62989, emphasis added; Toxey v State of New York, 279 AD2d 927, 928-929
lv denied 96 NY2d 711). As such, under this principle, this Claimant's
ability to rely on any continuous treatment tolling relative to the Oneida
allegations ended upon his service of a Notice of Intention on January 8, 2001.
So, while the service of that document extended the time for commencing his
claim under CCA 10 & 11, it also cut off the toll of the accrual date under
the continuous treatment doctrine. (Chestnut v State of New York, Ct Cl,
February 13, 2001, Bell, J., Claim No. 102155, Motion Nos. M-62287 and M-62989).
Thus, for purposes of the motions at hand, the Court finds that this claim,
relative to the Oneida allegations, accrued on January 8, 2001 (the date he
served his notice of intention), thereby providing Claimant two years from that
date to file and serve a claim. In other words, two years from the cessation of
the toll of the accrual date, January 8, 2001, (i.e., within two years of the
date the notice of intention was served), is January 8, 2003. Accordingly,
Claimant has until January 8, 2003 to serve Claim No. 104438 upon the Attorney
General by personal service or certified mail, return receipt requested,
pursuant to CCA 10 and 11.
Next, the Court turns to Claimant's motion to amend, Motion No. M-65133, and
motion to have his Notice of Intention treated like a claim, Motion No. M-65290.
The Court has previously noted that Claimant still has time to serve Claim No.
104438. Assuming the Claim is properly and timely served, Claimant may then be
entitled to amend without leave pursuant to 22 NYCRR 206.7 which states that
"[p]leadings may be amended in the manner provided by CPLR 3025, except that a
party may amend a pleading once without leave of court within 40 days after its
service, or at any time before the period for responding to it expires, or
within 40 days after service of a pleading responding to it." Accordingly,
inasmuch as Claimant has yet to serve Claim No. 104438, the Court finds that
Claimant's motion to amend should be denied as premature and Claimant's motion
for permission to have his Notice of Intention treated like a claim pursuant to
CCA 10 (8) should be denied as moot.
Motion for Poor Person Status (Motion No. M-65300)
Finally, Claimant moves for an order assigning counsel to assist him in
litigating this matter and for poor person status pursuant to CPLR 1101 and
Initially, the Court notes that a motion to proceed as a poor person must be
served upon the parties and notice must be given to the county attorney where
the action is triable or to the corporation counsel if the action is triable in
New York City. (CPLR 1101 [c]). Here, Claimant's affidavit of service reveals
that he has failed to serve the county attorney which is, in and of itself,
grounds for denying this motion. Furthermore, Claimant has already obtained an
Order reducing the filing fee to $30.00 pursuant to CPLR 1101 (f). (Kelley v
State of New York, Ct Cl., July 3, 2001, Read, P.J., Claim No. 104438).
Claimant alleges he has no income, no property and that no other person is
beneficially interested in the recovery sought. However, there are no other
costs necessary to prosecute a claim in the Court of Claims, and thus no other
privileges are available under CPLR article 11.
With respect to Claimant's request for the appointment of counsel, he does not
indicate any attempts to obtain counsel on his own behalf or via various legal
services. In any event, it is well settled that the appointment of counsel is
discretionary in civil matters. (Matter of Smiley, 36 NY2d 433, 438).
Generally, counsel will not routinely be assigned except in a proper case, such
as one involving "grievous forfeiture or loss of a fundamental right".
(Morgenthau v Garcia, 148 Misc 2d 900, 903). A review of the pleadings
before the Court in this case reveals a standard medical malpractice and/or
negligence case. As such, this matter fails to rise to the level warranting
assignment of counsel. Rather, this case is of the conventional type in which
counsel is traditionally retained on a contingent fee basis. Consequently, the
Court declines to exercise its discretionary authority on this matter.
Consequently, for the reasons stated above, it is ORDERED that the State's
Cross-Motion to Dismiss, Cross-Motion No. CM-65245, is GRANTED IN PART and
DENIED IN PART in accordance with the foregoing; and
It is FURTHER ORDERED that Claimant's motion seeking permission to amend his
claim, Motion No. M-65133 is DENIED as premature; and
It is FURTHER ORDERED that Claimant's motion for permission to treat the Notice
of Intention like a claim pursuant to CCA 10 (8), Motion No. M-65290 is DENIED
as moot; and
It is FURTHER ORDERED that Claimant's motion for poor person status, Motion No.
M-65300, is DENIED.