New York State Court of Claims

New York State Court of Claims

BARKER v. THE STATE OF NEW YORK, #2002-032-049, Claim No. 104519, Motion No. M-66815


State's motion to dismiss a claim as untimely is denied because claimant has alleged a medical malpractice claim based on continuous failure to treat extending over a period of time.

Case Information

LLOYD BARKER The caption has been amended to reflect the State of New York as the only properly named defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended to reflect the State of New York as the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Claimant's attorney:
Lloyd Barker, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Michael C. Rizzo, Esq., Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
June 11, 2003

Official citation:

Appellate results:

See also (multicaptioned case)

This claim was filed on July 6, 2001. The substantive portion of the claim reads in full:
I was to be operated on March of 2000 when at Attica CF[,] transferred to Great Meadow CF & not taken care of. Now brought here to Clinton CF & the problems [have] gotten worse. Have written out sick call slips & have been ignored, was put on ear drops once & taken to Coxsackie CF medical dept. so they are aware that there is a problem & nothing [has] been done & nothing to my complaints & a mastoidectomy is serious.
In its answer, the State raised as its ninth affirmative defense, the following:
That the claim fails to state the date of accrual of the cause of action as required by Section 11 of the Court of Claims Act and, therefore, there is no proper claim over which the Court has jurisdiction.
Defendant has now moved for dismissal of the claim on the grounds that the claim itself fails to comply with the requirement of section 11(b) of the Court of Claims Act, that a claim or notice of intention state "the time when" the claim arose.
CPLR 214-a provides that the time period for commencing actions for medical, dental or podiatric malpractice is to be calculated from the date 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." It is well established that 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" (
Mitchell v State of New York, Ct Cl, Jan. 4, 2001 [Claim No. 103000, Motion No. M-62613, MacLaw No. 2001-028-0506], Sise, J.).
It is evident from the allegations of the claim that claimant's cause of action is for alleged medical inaction, for a specific complaint, that has extended over a period of time in a succession of State facilities, from March 2000 to the date of filing.

Defendant's motion is denied.

June 11, 2003
Albany, New York

Judge of the Court of Claims

The following papers were read on defendant's motion for an order of dismissal:
1. Notice of Motion and Supporting Affidavit of Michael C. Rizzo, Esq, AAG, with annexed Exhibits

2. Notice of Motion in Opposition of Lloyd Barker, pro se

Filed papers: Claim; Answer