Affirmation in Response from Claimant 4
Claimant has filed this claim seeking damages for personal injuries allegedly
occurring while he was in the custody of the Department of Correctional Services
and housed at Marcy Correctional Facility. The claim is based upon allegations
of negligence, and possibly medical malpractice.
In his claim, claimant alleges that he was hospitalized from March 15, 2003 to
April 8, 2003 at Oneida Correctional Facility, and was then hospitalized from
May 13, 2003 to May 27, 2003 at Mid-State Correctional Facility. He further
alleges that a diagnosis of Mycobacterium gordonae was made on May 16, 2003 by
the Department of Pathology at SUNY Upstate Medical University. He then alleges
that a problem with the water supply at Marcy Correctional Facility was
acknowledged by facility officials on June 10, 2003.
As set forth in defendant's affirmation in opposition (see Item 3), claimant
served a notice of intention to file a claim upon the Attorney General on August
6, 2003 and subsequently served his claim upon the Attorney General on
September 4, 2003. According to the records of this Court, the claim
was filed with the Clerk of the Court of Claims on September 4, 2003.
In its verified answer, defendant has asserted three affirmative defenses which
claimant, in this motion, now seeks to have dismissed. These affirmative
defenses all contend that this Court lacks jurisdiction to hear this claim based
upon an alleged failure to serve a notice of intention within 90 days of accrual
of the cause of action (first affirmative defense), an alleged failure to serve
the claim upon the Attorney General within 90 days of accrual (second
affirmative defense), and/or an alleged failure to file the claim with the Clerk
of the Court of Claims (third affirmative defense).
With regard to the third affirmative defense, as set forth above, the claim has
now been filed with the Clerk of the Court of Claims. Defendant's attorney has
acknowledged this fact in her answering affirmation (see Item 3, par. 10), and
has withdrawn this affirmative defense. The Court must therefore address the
remaining two affirmative defenses asserted by defendant.
Pursuant to Court of Claims Act § 10(3), a claim asserting a cause of
action based upon negligence must be served upon the Attorney General and filed
with the Clerk of the Court of Claims within 90 days after accrual of such
claim, unless a notice of intention to file a claim is served upon the Attorney
General within such time period. If a notice of intention to file a claim is so
served, the claim must then be served and filed within two years of the date of
As set forth in the first two affirmative defenses, defendant argues that
neither the notice of intention nor the claim were served within 90 days of
accrual of this cause of action.
In his claim, claimant alleges that his claim accrued on August 28, 2003 (see
par. 4). Based upon the allegations contained in the claim, however, it is
clear that this claim accrued at an earlier date. Based upon claimant's initial
medical confinement which began on March 15, 2003, defendant contends that the
circumstances causing the need for hospitalization must have occurred prior to
March 15, 2003, rendering service of both the notice of intention to file a
claim and the claim untimely.
The gravamen of this claim, however, is that claimant's illness was caused by a
contaminated water supply at Marcy Correctional Facility, and that officials at
Marcy Correctional Facility were negligent in failing to protect inmates at the
facility from the effects of this contaminated water. It could therefore be
argued that claimant's cause of action did not accrue until officials at Marcy
Correctional Facility acknowledged the problems with the water supply on June
10, 2003, as alleged in the claim. Furthermore, at the earliest, a cause of
action for these alleged acts of negligence would not have accrued until
claimant was diagnosed with the disease allegedly caused by the contaminated
water supply. Claimant has submitted with his motion a copy of the report from
the Department of Pathology at SUNY Upstate Medical University, dated May 16,
2003, documenting his diagnosis (see Exhibit B to Items 1,2). Defendant has
not disputed the accuracy of these dates.
Under either of these scenarios, the notice of intention served by claimant
upon the Attorney General on August 6, 2003 was served within 90 days of accrual
and is therefore timely. Additionally, the claim, which was subsequently served
upon the Attorney General and filed with the Clerk of the Court of Claims on
September 4, 2003, was obviously served and filed within two years following
accrual of the claim, and is also timely.
Finally, to the extent that claimant has asserted a claim for medical
malpractice, any hospitalization of claimant that occurred prior to accrual of
his cause of action would be covered by the continuous treatment doctrine under
CPLR § 214-a, assuming that claimant can establish that such
hospitalization was causally related to the circumstances forming the basis of
his negligence claim.
Based on the foregoing, it is
ORDERED, that Motion No. M-67860 is hereby GRANTED; and it is further
ORDERED, that the three affirmative defenses asserted by the defendant in its
verified answer dated October 10, 2003 are hereby stricken.