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
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
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
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.