New York State Court of Claims

New York State Court of Claims

JONES v. THE STATE OF NEW YORK, #2002-028-058, Claim No. 100743, Motion No. M-65344


Defendant's motion to dismiss is denied.

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:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Saul Aronson, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 21, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Defendant's motion to dismiss the Claim pursuant to

CPLR § 3211

1. Notice of Motion and Supporting Affirmation of Assistant Attorney General

Saul Aronoson, filed June 14, 2002 (Aronson Affirmation), with annexed

Exhibits A-B.

2. Opposition Papers: None.

Filed papers: Claim, filed July 19, 1999; Verified Answer filed August 31, 1999.

At all times relevant, the Claimant Robert Jones (Claimant) was an inmate in the care and custody of the Department of Correctional Services (DOCS). Claimant alleges that on the evening of March 27, 1999 he fell while descending a flight of steps from the Protestant Chapel in the Wallkill Correctional Facility (Wallkill CF) and injured his left leg, left knee, lower back and buttock. Thereafter, Claimant received medical treatment at the Wallkill CF, Albany Medical Center Hospital, Shawangunk Correctional Facility, Orleans Correctional Facility (Orleans CF) and Wende Correctional Facility (Wende CF) . Claimant alleges that on June 19, 1999, a doctor at Wende CF informed him for the first time that "his left hip had previously been broken, and because so many months went by without correcting the broken hip" (Claim ¶13), Claimant required a hip replacement. The instant Claim followed in which it is alleged that the Defendant was negligent in failing to diagnosis Claimant's broken hip (Claim ¶ 2).

Defendant has moved for dismissal pursuant to CPLR § 3211 alleging that Claimant failed to timely file and serve his claim in that his cause of action accrued on March 27, 1999 (Aronson Affirmation, ¶ 3) or March 28, 1999 (Id at ¶ 4). It is undisputed that the Claim was served upon the Attorney General on July 20, 1999 and filed with the Court on July 19, 1999.

It is well established that failure to timely serve the Attorney General in strict compliance with Court of Claims Act § 10 (3) gives rise to a jurisdictional defect (see, Finnerty v New York State Thruway Auth., 75 NY2d 721, 723; Dreger v New York State Thruway Auth., 177 AD2d 762, 763, affd 81 NY2d 721; Suarez v State of New York, 193 AD2d 1037, 1038). As an initial inquiry, the Court finds that the State adequately pleaded the service and timeliness defenses with sufficient particularity in its Answer (Aronson Affirmation, Exhibit B) to meet the requirement of Court of Claims Act § 11(c) (see, Sinacore v State of New York, 176 Misc 2d 1, 9; and Rivera v State of New York, Ct Cl, Patti, J., Claim No. 104786, UID #2002-013-022 [May 30, 2002]).

A claim premised upon negligence or malpractice must be served and filed within 90 days of accrual (Court of Claims Act § 10) or a claimant may opt to serve a notice of intention to file a claim within 90 days from the date of accrual, thereby extending the time within which the claim must be filed. It is well-settled that a medical malpractice claim accrues on the date of the alleged wrongful act or omission (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).

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. The continuous treatment doctrine may be properly applied to situations where a prison inmate is treated (or necessary treatment omitted) by physicians in a succession of State facilities. "[W]here treatment is provided by more than one physician or health care provider, the continuing treatment by one will be imputed to the other in the presence of an agency relationship, or some other relevant association which continues the nexus between the two providers" (Ganapolskaya v V.I.P. Med. Assocs, 221 AD2d 59, 62). The fact that the providers work at different locations, in different medical clinics does not defeat application of the doctrine where the subsequent health care workers were in "relevant association" with the original physician (Ogle v State of New York, 142 AD2d 37, 40). Ogle, in fact, provides an example of the continuous treatment doctrine being applied where the alleged malpractice was failure to follow up and treat a condition (in that case, tuberculosis) after it had been diagnosed.

In this Court's view, consistent with Ogle, supra, Claimant is entitled to the benefit of the continuous treatment doctrine, where as here, Claimant sought treatment numerous times (see, Claim, Exhibits A-H) in the interval between the accident and June 19, 1999, the date Claimant alleges he was told of the need for surgery (Claim ¶ 13). In this regard, the Court notes the possibility of a new fracture, and the need for treatment, is contained in a radiological report from Albany Medical Center Hospital which is dated either April 21 or 22, 1999[1] (Claim, Exhibit H)[2] and appears on its face to have been transmitted to DOCS. Subsequent to the date of the foregoing radiological report, Claimant continued to complain of pain in his left hip and was seen at Orleans CF and Wende CF. Based on the allegations contained in the claim 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.

This matter remains scheduled for trial on November 13, 2002.

October 21, 2002
Albany, New York

Judge of the Court of Claims

[1] A valid argument can be advanced that the accrual date of this claim is either of the April dates, thus making the claim timely filed and served without resort to the tolling provisions of CPLR 214-a (see, Young v New York City Health & Hosps. Corp., 91 NY2d 291[claims based on defendant's failure to diagnose and treat accrued when hospital learned of the abnormal test results]).
[2] This Exhibit casts doubt on Defendant's assertion the malpractice, if any, was committed by non-state actors (Aronson Affirmation, ¶ 4). It also raises the question of which hip fracture is the basis for Claimant's assertion that a hip replacement is necessary.