New York State Court of Claims

New York State Court of Claims

GONZALEZ v. THE STATE OF NEW YORK, #2003-010-001, Claim No. 104211, Motion Nos. M-65978, CM-66043


Defendant's motion for summary judgment dismissing the claim and claimant's cross-motion seeking to strike defendant's fifth affirmative defense are denied. Claimant's cross-motion to compel an EBT is granted.

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):
Terry Jane Ruderman
Claimant's attorney:
Defendant's attorney:
Attorney General for the State of New YorkBy: Katharine S. Brooks, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
January 10, 2003
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1-4 were read and considered by the Court on defendant's motion for summary judgment dismissing the claim and claimant's cross-motion seeking, inter alia, to strike defendant's fifth affirmative defense and compel discovery:
Notice of Motion for Summary Judgment, Attorney's Supporting Affirmation and Exhibits......................................................................................................................1

Attorney's Affirmation in Opposition and Exhibits.................................................2

Notice of Cross-Motion, Attorney's Supporting Affirmation and Exhibits.............3

Attorney's Affirmation in Opposition.......................................................................4
Notice of Intention

On August 25, 1999, claimant, an inmate proceeding pro se, served a Notice of Intention upon defendant alleging that, during claimant's incarceration at Sing Sing Correctional Facility, defendant failed to send claimant for a test which would have diagnosed and arrested his disease (Defendant's Ex. A). The Notice of Intention stated that the claim arose "at around May 20, 1999, this. is a continual chain of events [sic]" (id.).
On April 30, 2001, claimant served defendant with a claim and on May 1, 2001, the claim was filed. The claim alleged, "[t]his claim arose at or around May 20, 1999, the original complain [sic] and suffering dates back to 6/11/97, this is a continual chain of events that transpired throughout a period of time" (Defendant's Ex. B). The claim states that at or around June 11, 1997, claimant complained of bleeding in the rectum area and that he was improperly diagnosed as suffering from a hemorrhoid condition and treated accordingly. Claimant continued to suffer pain and bleeding and was given a CAT scan at St. Agnes Hospital. The CAT scan was not clear and the hospital suggested that defendant send claimant for an endoscopy examination. Claimant contends that defendant's failure to send claimant for an endoscopy resulted in the failure to detect precancerous polyps lesions in his colon and rectum area while they were treatable. Claimant further contends that such failure resulted in claimant's need for chemotherapy and three surgeries, including a colostomy bag.
Defendant's answer raised, as a fifth affirmation defense, lack of jurisdiction on the ground that the Notice of Intention was not served within 90 days after the May 20, 1999 accrual date (Defendant's Ex. C).
Defendant's Motion to Dismiss
Defendant moves to dismiss on the ground that the Notice of Intention was served on August 25, 1999, 97 days after the accrual date of May 20, 1999. In opposition to the motion, claimant argues that on August 19, 1999, claimant made a disbursement request for certified mail, return receipt requested, and that the Notice of Intention was not sent out until August 23, 1999 due to defendant's delay (Claimant's Ex. B).

In any event, claimant argues that in June 2001, he retained an attorney who obtained claimant's complete medical file in discovery, which indicated that there was a continuous course of treatment between April 1996 and February 2000 (Affirmation in Opposition, ¶ 6). Thus, the Notice of Intention received by defendant on August 25, 1999 was timely.

Claimant's affidavit details his medical treatment from April 1996 through February 2000 (Claimant's Ex. C). On June 23, 1997, St. Agnes Hospital recommended that defendant send claimant for an endoscopy examination and this was never done. On May 9, 1999, rectal biopsies were taken which indicated squamous cell carcinoma with perianal abscess. On May 25, 1999, a diversion colostomy was performed and claimant underwent chemotherapy until August 19, 1999. On November 24, 1999, claimant had surgery for excision of the colostomy and closure. On February 16, 2000, claimant had a colonoscopy and surgical biopsy of his rectosigmoid colon; he was diagnosed with severe radiation proctitis.

Claimant argues that the continuous treatment of his condition tolled the statute of limitations until medical services were complete in February 2000.

While claimant's medical records were not submitted on the motion, claimant's unrefuted affidavit detailing his medical treatment indicates that he may be entitled to a tolling of the statute of limitations. Discovery, however, is not complete. Accordingly, defendant's motion to dismiss is DENIED without prejudice and may be renewed upon completion of discovery. Claimant's cross-motion seeking to strike defendant's fifth affirmative defense is similarly denied without prejudice.
Claimant's Cross-Motion to Compel Discovery
Claimant cross-moves for sanctions and to compel an examination before trial (EBT).

To the extent that claimant seeks sanctions, his cross-motion is DENIED at this time, but may be renewed in the event of noncompliance with this order. That branch of claimant's cross-motion which seeks to compel is GRANTED as follows: defendant shall produce B. Knight, R.N., A. Fusina, R.N. and David Rosner for consecutive EBTs to be conducted in the EBT room located in the Courthouse at 140 Grand Street, 9th Floor, White Plains on March 26, 2003 to commence at 9:30 a.m., unless on or before February 10, 2003, the Court receives a writing indicating that the parties have agreed to a date certain for the witnesses to be deposed via teleconference.

January 10, 2003
White Plains, New York

Judge of the Court of Claims