New York State Court of Claims

New York State Court of Claims

BARNES v. THE STATE OF NEW YORK, #2003-019-528, Claim No. 107294, Motion No. M-66444


State's motion to dismiss granted; continuous treatment doctrine found inapplicable on the facts

Case Information

ANTHONY BARNES The Court has sua sponte amended the caption to reflect the State of New York as the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court has sua sponte amended the caption to reflect the State of New York as the only proper defendant.
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: James E. Shoemaker, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
March 17, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


In lieu of an answer, the State of New York (hereinafter "State") moves to dismiss pursuant to CPLR 3211. Claimant, an inmate appearing pro se, opposes the motion.

The Court has considered the following papers in connection with this motion:
  1. Claim, filed February 6, 2003.
  2. Notice of Motion No. M-66444, dated February 19, 2003, and filed February 24, 2003.
  3. Affirmation of James E. Shoemaker, AAG, in support of motion, dated February 19, 2003, with attached exhibit.
  4. Affirmation [sic] of Anthony Barnes, in opposition to motion, sworn to February 27, 2003.
This Claim alleges that a nurse at the Elmira Correctional Facility (hereinafter "Facility") advised Claimant that he had Hepatitis B on February 19, 2002. The Claim further alleges that medical personnel were aware of Claimant's condition for possibly as long as 10 years prior thereto, but never informed him of his condition or treated him for the same. The Claim can be construed as alleging negligence and medical malpractice causes of action. This Claim was served on the Attorney General by way of certified mail, return receipt requested, on January 16, 2003, and filed in the Office of the Clerk on February 6, 2003. Claimant did not serve a notice of intention.

By way of this motion, the State contends that Claimant failed to serve a notice of intention or file and serve a claim within 90 days as required by Court of Claims Act (hereinafter "CCA") 10 and 11. In reaching this conclusion, the State relied upon the date of accrual specified in the Claim itself, namely February 19, 2002 which is the date Claimant alleges he learned of his medical condition.

It is a fundamental principle of practice in the Court of Claims that the filing and service requirements contained in the CCA are jurisdictional in nature and must be strictly construed. (CCA 11; Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723). The burden of proof on the issue of compliance with CCA 11 is on the Claimant. (Boudreau v Ivanov, 154 AD2d 638). Using the accrual date of February 19, 2002, both the service and filing of this Claim were outside the ninety-day statutory period to do so, unless a notice of intention was served on the defendant within ninety days. In opposition, Claimant does not argue that he served a notice of intention, but rather asserts that the proper date of accrual is really November 26, 2002 which, if true, would make this Claim timely filed and served. However, there is nothing in this record supporting Claimant's attempt to change the accrual date. The Claim itself, which Claimant prepared after the alleged November 2002 date, asserts an accrual date of February 19, 2002 which is tied to the date a Facility nurse advised him he was Hepatitis B positive. Claimant argues that the November 26, 2002 is the more accurate accrual date because he received continuing treatment and that on said date he "[s]tarted suffering from intestinal pains and had immediate blood work done and x-rays to try and determine what the problem was, but after was just given something for the pain (ibuprofen)." (Claimant's Affirmation in Opposition, ¶ 6). It appears that Claimant is attempting to rely on the continuous treatment doctrine which provides that a limitations period will not begin to run until the end of the course of treatment. (McDermott v Torre, 56 NY2d 399, 405). However, the application of the doctrine presupposes treatment for a condition in the first instance. (Young v New York City Health & Hosps. Corp, 91 NY2d 291, 296-297; Nykorchuck v Henriques, 78 NY2d 255, 258-259). The very essence of Claimant's allegations here are that he was not informed of his condition and did not receive any treatment for his condition. As such, the Court finds no alternative than to deem the date of accrual to be the date Claimant learned of his medical condition, namely February 19, 2002. Consequently, this Claim was untimely filed and served.

Accordingly, for the reasons stated above, it is ordered that the State's motion to dismiss, Motion No. M-66444, is GRANTED and Claim No. 107294 is DISMISSED.

March 17, 2003
Binghamton, New York

Judge of the Court of Claims