New York State Court of Claims

New York State Court of Claims

KELLEY v. THE STATE OF NEW YORK, #2002-019-547, Claim No. 104438, Motion Nos. M-65133, M-65290, M-65300, CM-65245


Synopsis


State's cross-motion to dismiss due to Claimant's failure to comply with CCA 10 and 11 is granted in part and denied in part; Claimant's motion for permission to treat notice of intention as a claim is denied as moot; Claimant's motion to amend claim is denied as premature; and Claimant's motion for poor person status is denied .

Case Information

UID:
2002-019-547
Claimant(s):
ANDRE KELLEY
Claimant short name:
KELLEY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104438
Motion number(s):
M-65133, M-65290, M-65300
Cross-motion number(s):
CM-65245
Judge:
FERRIS D. LEBOUS
Claimant's attorney:
ANDRE KELLEY, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Carol A. Cocchiola, Assistant Attorney General,of counsel
Third-party defendant's attorney:

Signature date:
July 11, 2002
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

There are currently four motions pending before the Court relative to this Claim. Claimant, an inmate appearing pro se, moves for the following relief: (1) permission to amend his Claim pursuant to CPLR 3025; (2) permission to have his Notice of Intention treated like a claim pursuant to Court of Claims Act (hereinafter "CCA") 10 (8) (a); and (3) for poor person relief pursuant to CPLR 1101 and 1102. For its part, the State of New York (hereinafter "State") cross-moves for an order dismissing this Claim pursuant to CCA 10 and 11, while also opposing each of Claimant's motions.


The Court has considered the following papers in connection with this motion.

  1. Claim, filed June 18, 2001.
  2. "Motion for leave to file an [sic] Supplemental Amendment", Motion No. M-65133, undated, filed April 23, 2002, with attachments.
  3. Notice of Cross-Motion No. CM-65245, dated May 17, 2002, and filed May 17, 2002.
  4. Affirmation of Carol A. Cocchiola, AAG, in support of cross-motion, dated May 17, 2002, with attached exhibits.
  5. Affidavit of Carl A. McKay, in support of cross-motion, sworn to May 10, 2002.
  6. Notice of Motion No. M-65290, dated May 29, 2002, and filed May 31, 2002.
  7. Affidavit of Andre Kelley, in support of Motion No. M-65290, dated May 29, 2002, with attachments.
  8. Affirmation of Carol A. Cocchiola, AAG, in opposition to Motion No. M-65290, dated June 17, 2002, and filed June 18, 2002, with attached exhibit.
  9. Notice of Motion No. M-65300, dated May 28, 2002, and filed June 3, 2002.
  10. Affidavit of Andre Kelley, in support of Motion No. M-65300, sworn to May 28, 2002.
  11. Affirmation of Carol A. Cocchiola, AAG, in opposition to Motion No. M-65300, dated June 17, 2002, and filed June 18, 2002.

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 incarceration.[1] 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,[2] 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 Court.

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 [3]; 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 this case.


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 below.


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 omitted]."[3] (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 1102.


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.

July 11, 2002
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims




[1]Raynaud's Disease is defined as "[i]diopathic paroxysmal bilateral cyanosis of the digits due to arterial and arteriolar contraction; caused by cold or emotion." (Stedman's Medical Dictionary 502, 1739 [26th ed 1995]).
[2]Claimant's papers contain conflicting dates regarding his date of transfer. The Claim cites August 20, 2000, while the Notice of Intention says August 26, 2000. The Court will use the later date of August 26, 2000.
[3]The fact that there is conflicting Fourth Department authority on this issue (see, Kelly v State of New York, 110 AD2d 1062), does not impact this analysis relative to the events which arose at Elmira, located in Chemung County, which is governed by Third Department authority. (CCA 24; Payant v State of New York, 92 AD2d 707, lv denied 59 NY2d 602).