New York State Court of Claims

New York State Court of Claims

CLARKE v. THE STATE OF NEW YORK, #2003-019-537, Claim No. 107286, Motion No. M-66532


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

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):

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:
April 8, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


In lieu of an answer, the State of New York (hereinafter "State") moves to dismiss this Claim pursuant to Court of Claims Act (hereinafter "CCA") 10 (3) and 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 5, 2003.
  2. Notice of Motion No. M-66532, dated March 11, 2003, and filed March 13, 2003.
  3. Affirmation of James E. Shoemaker, AAG, in support of motion, dated March 11, 2003, with attached exhibits.
  4. Affidavit of Wayne Clarke, in opposition to motion, sworn to March 24, 2003, and filed March 26, 2003.
Claimant alleges he was injured when a fellow inmate threw a rock at him at Elmira Correctional Facility on July 7, 1995. This Claim relates to the medical treatment or lack thereof which Claimant may or may not have received for his injuries which he lists as both injuries to his thoracic spine, severe headaches, and the "sensation of pressure on his brain." (Notice of Intention; Claim, ¶ 3). The Court has reviewed the Claim and finds that the essence of Claimant's complaints relates to the decisions by a Health Maintenance Organization to deny referrals made by Facility physicians for neurological consultations, as well as an alleged lack of medical treatment received from correctional facilities medical personnel.

Claimant served a Notice of Intention on the State on January 7, 1998.[1] (State's Exhibit A). Said Notice of Intention clearly references the July 7, 1995 rock attack, but recites an accrual date of October 15, 1997. Moreover, said Notice of Intention specifically complains about a lack of medical treatment for a back injury including the denial of treatment by a neurologist, allegations which are mirrored in the Claim. This Claim was served on the Attorney General's Office on February 5, 2003 by certified mail, return receipt requested, and filed with the Clerk of the Court on February 5, 2003. By way of this motion, the State contends that Claimant has failed to comply with CCA 10 (3) which states that in the event a notice of intention is served upon the attorney general within ninety days after the accrual, then "the claim shall be filed and served upon the attorney general within two years after the accrual of such claim." (CCA 10 [3]).

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). First and foremost, the Court notes that there is no proof in this record supporting Claimant's initial allegation of an accrual date of October 15, 1997 for complaints which originated in 1995. That having been said, however, for purposes of this discussion the Court will proceed, as have the parties, on the assumption that the January 7, 1998 Notice of Intention was timely served. Assuming this to be the case, CCA 10 (3) required Claimant to serve and file the Claim within two years after the accrual of such claim. Here, two years after an accrual date of October 15, 1997 would be October 15, 1999. Under this analysis this Claim is clearly untimely. This is not the end of our discussion, however, because Claimant argues that he is entitled to the benefit of the continuous treatment doctrine.

The continuous treatment doctrine 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). The State argues that the application of the doctrine is only proper when an individual is undergoing treatment which is contrary to the allegations in this case. The Court agrees that Claimant's allegations clearly assert a lack of medical treatment and, as such, finds the continuous treatment doctrine inapplicable on these facts. (Young v New York City Health & Hosps. Corp., 91 NY2d 291, 296-297; Nykorchuck v Henriques, 78 NY2d 255, 258-259). Parenthetically, the Court notes that even if it had found the continuous treatment doctrine applicable, this Claim would still be untimely because the Third Department has stated that a claimant's initiation of the legal process "[c]learly severed any continuing relationship of trust in the physician-patient relationship and ended any 'continuous treatment tolling' when he served his notice of intention upon defendant." (Toxey v State of New York, 279 AD2d 927, 928-929, lv denied 96 NY2d 711). As such, under this principle, this Claimant's ability to rely on any continuous treatment tolling ended upon his service of the Notice of Intention on January 7, 1998. So, while the service of that document extended the time for commencing his claim under CCA 10 & 11, it also cut off the toll of the accrual date under the continuous treatment doctrine. (Chestnut v State of New York, Ct Cl, February 13, 2001, Bell, J., Claim No. 102155, Motion Nos. M-62287 and M-62989). So, even if the continuous treatment doctrine were applicable, the accrual date would be January 7, 1998 (the date of service of the Notice of Intention), thereby providing Claimant two years from that date to file and serve a claim. As such, two years from the cessation of the toll of the accrual date (January 7, 1998-the date the notice of intention was served), was January 7, 2000. Thus, under this analysis the Claim is also untimely.

In his opposing papers Claimant references a second Notice of Intention which he claims was served in February 2001. Claimant has not attached a copy of said Notice of Intention; nor any proof of its service on the Attorney General's office; nor is there any mention of a February 2001 Notice of Intention contained in the Claim itself. The Court will not consider any Notice of Intention of which there is no proof of its existence or proper service. Finally, the Court notes that Claimant has not offered any authority from which this Court could conclude that the State is liable for the decisions made by a Health Maintenance Organization.

Accordingly, for the reasons stated above, it is ORDERED that the State's motion to dismiss, Motion No. M-66532, is GRANTED and Claim No. 107286 is DISMISSED.

April 8, 2003
Binghamton, New York

Judge of the Court of Claims

[1]The alleged service of a second Notice of Intention in February 2001 will be discussed hereinbelow.