New York State Court of Claims

New York State Court of Claims

CLARK v. THE STATE OF NEW YORK, #2003-031-063, Claim No. 105917, Motion No. M-67025


Synopsis


Continuous treatment doctrine inapplicable to Claimant's malpractice claim. Claim dismissed as untimely.

Case Information

UID:
2003-031-063
Claimant(s):
FREDERICK CLARK
Claimant short name:
CLARK
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105917
Motion number(s):
M-67025
Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
FREDERICK CLARK, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: JAMES L. GELORMINI, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 14, 2003
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers, numbered 1 to 4, were read on motion by Defendant for dismissal of the claim:
1) Notice of Motion, filed June 27, 2003;
2) Affirmation of James L. Gelormini, Esq., dated June 25, 2003, with attached exhibit;
3) Unsworn affidavit of Claimant, dated June 30, 2003, with attached exhibit;
4) Filed papers: Claim and Answer. Claimant commenced this action for dental malpractice and negligence alleging that, on September 1, 1995, while he was an inmate at Attica Correctional Facility ("Attica"), he was examined by the facility dentist who improperly failed to diagnose the early stages of gingivitis, a disease of the gums. This was the only time Claimant alleges that he was negligently treated by facility doctors. He does, however, allege that on July 2, 1996 and August 20, 1996, the correction officers in charge of the unit in which he was confined, intentionally prevented him from being seen by the facility dentist. Further, he alleges that in July of 1997, he was transferred from Attica to Green Haven Correctional Facility ("Green Haven"). He alleges that, upon his transfer, the medical care providers at Green Haven failed to properly evaluate his dental records. According to Claimant, a proper review of these records would have revealed his condition. Claimant was finally diagnosed with gingivitis on June 22, 2001, a point in time at which he alleges the disease had progressed so far that several of his teeth had to be removed.

Claimant served his notice of intention to file a claim upon the Attorney General on September 4, 2001, and his claim was filed and served on April 16, 2002. In his notice of intention to file a claim, Mr. Clark mentions only the June 22, 2001 date of diagnosis of gingivitis. He then alleges that Defendant was negligent in not taking the proper precautions and providing the proper care during the earlier stages of the disease. The notice of intention does not identify any specific care he was given, or any specific earlier dates on which he was treated, negligently or otherwise. In his claim, Mr. Clark alleges that, had Defendant diagnosed and treated his condition earlier, the disease would have been far less severe. It is also only in his claim that he identifies the dates and events described above.

With this motion, Defendant seeks dismissal of the claim, based upon Claimant's failure to serve either his notice of intention to file a claim or his claim upon the Attorney General in a timely manner as required by Court of Claims Act § 10(3). Defendant asserts that the continuous treatment doctrine can not be invoked in this matter, due to the fact that there was no diagnosis, nor any course of treatment provided by Defendant. Defendant also argues that the notice of intention to file a claim served by Claimant did not identify any dates or events prior to June 22, 2001 and, therefore, that document did not extend Claimant's time to serve and file a claim relating to any other incidents. Defendant also argues that the claim alleges negligence or malpractice only with regard to the earlier dates (not mentioned in the notice of intention to file a claim) and that Claimant has alleged no facts relating to the date of diagnosis, June 22, 2001, which could support a cause of action for negligence or malpractice.

Claimant argues in his reply that his notice of intention to file a claim did put Defendant on notice that the alleged malpractice and negligence referred to occurred prior to the June 22, 2001 date of diagnosis. He also argues that the statute of limitations has been tolled by the continuous treatment doctrine.

With regard to the adequacy of Claimant's notice of intention, it has been held that, although a notice of intention to file a claim is not held to the same stringent requirements of a claim (Sega v State of New York, 246 AD2d 753), it must, nonetheless, provide enough information to permit the State to conduct a prompt and meaningful investigation (Heisler v State of New York, 78 AD2d 767; Grande v State of New York, 160 Misc 2d 383).

In this matter, the information provided in the notice of intention was not sufficient to permit the State to conduct any sort of meaningful investigation. It identifies only the date that Claimant was diagnosed with gingivitis, but provides no specific information regarding any negligence or malpractice leading up to this diagnosis. Particularly troubling is the failure of the notice of intention to identify any dates, or even a time frame, during which any negligent act or malpractice is alleged to have occurred. In Park v State of New York (226 AD2d 153), the Appellate Division, First Department determined that the failure to specify the date of accrual in the notice of intention was a fatal jurisdictional defect.
"[T]he Court of Claims properly dismissed as untimely the second and third causes of action . . . based upon the claimants' noncompliance with Court of Claims Act §§ 10 and 11, which are jurisdictional in nature and must be strictly construed, by their failure to specifically state in the notice of intention, as required by section 11(b) of the Court of Claims Act, the time the claim accrued, and their failure to file their claims within 90 days from the time of accrual as required by section 10(3), (3-b) of the Court of Claims Act." (Citations omitted) (Park v State of New York, supra.)
Based upon Claimant's failure to specify the allegedly actionable events occurring between 1995 and 1997 in his notice of intention to file a claim, that document failed to preserve his rights to commence an action relating to those events. Additionally, Defendant correctly points out that Claimant has alleged no facts relating to the one date that was provided in his notice of intention to file a claim (the date of diagnosis, June 22, 2001) which could support a cause of action for negligence or malpractice.

Even if Claimant's notice of intention to file a claim had adequately set forth the dates of the alleged malpractice, Defendant's motion would still be successful as the causes of action identified in the claim are time-barred. Pursuant to Court of Claims Act §10(3) ("CCA"), a claim based upon personal injury resulting from the negligence or malpractice of an agent of the State, such as is alleged here, must be filed within ninety days unless Claimant has served a notice of intention to file a claim. In that event, CCA § 10(3) provides: "the claim shall be filed and served upon the attorney general within two years after the accrual of such claim" (emphasis added). It is a fundamental principle of practice in the Court of Claims that the filing and service requirements contained in Court of Claims Act § 10 are jurisdictional in nature and must be strictly construed (Finnerty v New York State Thruway Auth., 75 NY2d 721, 722; Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687).

Although Claimant argues that the continuous treatment doctrine operated to toll the statute of limitations, I find that this doctrine is not applicable in this instance. Looking at the dates and events set forth in the claim, it becomes clear that the date of the alleged malpractice was September 1, 1995. Claimant does not allege that he saw the facility dentist after this date until June 22, 2001, when he was diagnosed. The July 2, 1996 and August 20, 1996 dates identified by Claimant are not dates in which he alleges medical malpractice or negligence, or even that he was treated by any medical care provider. Rather, on these dates he alleges that the correction officers intentionally refused to permit him to attend sick call. While these occurrences may have been actionable under a theory of intentional tort (for which a shorter, one year statute of limitations would apply), they do not form the basis upon which one could invoke the continuous treatment doctrine.

Similarly, Claimant's transfer to another facility in July of 1997 appears to have nothing to do with his medical treatment. Claimant attempts to tie this transfer date in with his claim, but it does not appear that he sought or received treatment on that date. Further, though he alleges that his transfer should have precipitated a review of his medical records, Claimant's condition was undiagnosed at that point in time and, therefore, would not have been reflected in his records.

Finally, I note that, even if the continuous treatment doctrine did apply to the events of July and August of 1996, when Claimant alleges he attempted to seek medical attention, his action would nonetheless have become time-barred on August 20, 1998. There is no indication that Claimant sought or received any type of medical intervention during this time. In fact, there is no indication that Claimant sought or received medical attention during the almost five year period between August 20, 1996, and the June 22, 2001 date of diagnosis.

For the reasons set forth above, it is hereby,

ORDERED, that Defendant's motion for dismissal of the claim is granted. The Clerk is directed to close the file.

August 14, 2003
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims