New York State Court of Claims

New York State Court of Claims

LARRY v. THE STATE OF NEW YORK, #2003-015-368, Claim No. 107124, Motion No. M-67391


Synopsis


Court dismissed claim for lack of jurisdiction where the notice of intention to file the claim was served by regular mail. The service of the notice of intention, however, severed the doctor/patient relationship between claimant and the facility's doctor and ended any continuous treatment tolling at the time of service. The claim was therefore untimely.

Case Information

UID:
2003-015-368
Claimant(s):
MARK LARRY
Claimant short name:
LARRY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107124
Motion number(s):
M-67391
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Nishman & Savitsky, EsquiresBy: Robert W. Nishman, Esquire
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Kathleen M. Resnick, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 1, 2003
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant's motion to dismiss the claim pursuant to CPLR 3211 for lack of jurisdiction is granted. The claim filed on December 27, 2002 seeks $2,000,000.00 in damages for alleged dental malpractice committed on March 22, 2002 at the dental clinic located at Franklin Correctional Facility in Malone, New York. On that date the claimant, then an inmate at the facility, had a tooth surgically extracted by a dentist identified only as Dr. Chaudrey. Claimant alleges that Dr. Chaudrey damaged a nerve during the surgery and that as a result his lower lip and gum are numb, sensitive to pressure and abnormal in feeling including sensations of stinging pain. Claimant further alleges that he has maintained a continuous doctor/patient relationship and received dental treatment on a continuous basis from March 22, 2002 to September 13, 2002.

The defendant moved to dismiss the claim asserting that the Court lacks jurisdiction due to claimant's service of a notice of intention upon the Attorney General by regular mail on June 13, 2002. Defendant alleges that since service of the notice of intention was not made by one of the methods of service prescribed by Court of Claims Act § 11 (a)[1] claimant did not gain the benefit of the additional time to serve and file a claim otherwise available under the statute. Defense counsel argues that absent the statutory extension of time effected by correctly serving the notice of intention the instant claim was untimely since it was served upon the Attorney General by certified mail, return receipt requested on December 30, 2002 which is well beyond the 90 day period for filing a claim prescribed in Court of Claims Act § 10 (3).

Claimant opposed the motion arguing that the State had timely notice of the claim despite claimant's use of regular mail in serving the notice of intention and that service of the claim itself was timely based upon the continuing treatment doctrine.

It is well established that the service and filing requirements of the Court of Claims Act are jurisdictional in nature. In Lichtenstein v State of New York, 93 NY2d 911, the Court of Appeals quoting from its earlier decision in Dreger v New York State Thruway Auth., 81 NY2d 721, 724, stated: "[B]ecause suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed." It is equally clear that a claim for dental malpractice must be filed and served within 90 days of its accrual unless within such time a notice of intention is properly served and that both a claim and a notice of intention are required to be served either personally or by certified mail, return receipt requested (Edens v State of New York, 259 AD2d 729; Hodge v State of New York, 213 AD2d 766). "Ordinary mail is not one of the methods of service authorized by Court of Claims Act § 11 (a)" (Turley v State of New York, 279 AD2d 819).

In the instant matter claimant has expressly admitted in his affidavit in opposition to the motion that service of the notice of intention mailed in June, 2002 was accomplished via regular mail. The failure to properly serve the notice of intention deprived claimant of the additional two year period in which to serve and file his claim and, accordingly, service of the claim on December 30, 2002 was insufficient to obtain jurisdiction over the defendant as it occurred well beyond the 90 day commencement period provided in Court of Claims Act § 10 (3) measured from the March 22, 2002 date of accrual. Service of the notice of intention by an unauthorized method deprives the Court of jurisdiction to entertain a claim thereafter served properly but outside the statutory time frame established for service of a claim. The claim must, therefore, be dismissed (see, Philippe v State of New York, 248 AD2d 827; Collado v State of New York, 207 AD2d 936).

In arriving at this determination the Court has rejected claimant's argument that the claim served on December 30, 2002 was timely through application of the continuous treatment doctrine. The Court of Appeals has stated that "[t]he doctrine rests on the premise that it is in the patient's best interest that an ongoing course of treatment be continued, rather than interrupted by a lawsuit, because 'the doctor not only is in a position to identify and correct his or her malpractice, but is best placed to do so' " (Nykorchuck v Henriques, 78 NY2d 255, 258, quoting McDermott v Torre, 56 NY2d 399, 408). It has recently been held, however, that the initiation of legal process through service of a notice of intention, "clearly severed any continuing relationship of trust in the physician-patient relationship and ended any 'continuous treatment tolling' at that point (see, Allende v New York City Health & Hosps. Corp., 90 NY2d 333, 339)" (Toxey v State of New York, 279 AD2d 927, lv to appeal denied 96 NY2d 711).

Claimant's service of the notice of intention on June 13, 2002 severed the doctor/patient relationship with Dr. Chaudrey thereby precluding claimant's use of the doctrine of continuous treatment as a shield against application of the 90 day statutory time limit contained in Court of Claims Act § 10 (3). Accordingly, the Court finds that the instant claim filed on December 27, 2002 was untimely requiring its dismissal.

December 1, 2003
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated September 15, 2003;
  2. Affirmation of Kathleen M. Resnick dated September 15, 2003 with exhibits;
  3. Affirmation of Robert W. Nishman dated October 1, 2003 with exhibits;
  4. Affirmation of Kathleen M. Resnick dated October 9, 2003 with exhibits.

[1].Court of Claims Act § 11 (a) requires that a notice of intention and/or a claim be served either personally or by certified mail, return receipt requested.