New York State Court of Claims

New York State Court of Claims

JUSTUS v. STATE OF NEW YORK, #2004-009-35, Claim No. 108499, Motion No. M-67787


Synopsis


Defendant's pre-answer motion to dismiss the claim for failure to provide a certificate of merit, for failure to timely serve a notice of intention and claim, for failing to specify when the cause of action accrued, and for failure to allege a cause of action against the State (i.e., alleging that malpractice was committed by a non-State employee) was denied without prejudice.

Case Information

UID:
2004-009-35
Claimant(s):
KEVIN JUSTUS
Claimant short name:
JUSTUS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108499
Motion number(s):
M-67787
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant's attorney:
THE PROSKIN LAW FIRM, P.C.
BY: Lisa Anne Proskin, Esq., Of Counsel.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Edward F. McArdle, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
June 15, 2004
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant has brought a pre-answer motion to dismiss this claim.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation, with Exhibits 1,2


Affidavit of Kevin Justus, Affirmation of Lisa Anne Proskin, Esq., Certificate of Merit

3,4,5

In his claim, claimant seeks damages based upon allegations of medical malpractice and/or negligence for medical treatment provided to claimant, an inmate in the care and custody of the Department of Correctional Services. Specifically, the allegations set forth in the claim pertain to medical treatment which began on or about March 5, 2001 "for a cold, pulseless and numb foot" (see Claim, Exhibit A to Items 1,2, par. 8), while claimant was incarcerated at Watertown Correctional Facility. On or about May 8, 2001, surgery was performed at Samaritan Medical Center in Watertown. Following surgery, claimant was then returned to Watertown Correctional Facility, where he continued to receive medical treatment. Claimant alleges that he continues to have pain in his foot and leg, and at the time of filing his claim, was still receiving medical treatment.

As set forth in the affirmation of defendant's attorney, a notice of intention to file a claim was served upon the Attorney General on February 27, 2002, and a claim was subsequently served on November 6, 2003.

Defendant, in lieu of an answer, has moved to dismiss the claim on various grounds, arguing that claimant failed to provide a certificate of merit; and that the notice of intention and the claim were both served well beyond the 90 days following surgery, rendering the claim jurisdictionally defective by failing to comply with the provisions of Court of Claims Act § 10(3). Defendant further contends that there can be no liability against the State, since the surgery (which forms the basis of this malpractice action) was performed by a physician who was not a State employee. Finally, with regard to any allegations of medical malpractice related to follow-up care provided to claimant at correctional facilities, defendant contends that claimant has failed to specify when such a cause of action accrued, and therefore he has failed to satisfy the pleading requirements of Court of Claims Act § 11(b).

Initially, the Court notes that defendant is correct in noting that claimant failed to comply with CPLR § 3012-a in that he did not serve and file a certificate of merit with his claim in this medical malpractice action. It has been held, however, that the initial failure to serve and file such a certificate does not equate to a default in pleading, and therefore a dismissal of the action should not immediately result from such a failure (Dye v Leve, 181 AD2d 89; Kolb v Strogh, 158 AD2d 15). Since claimant's attorney has served and filed the required certificate of merit with her response papers to this motion, defendant's argument on this point has been rendered moot.

The crux of defendant's motion to dismiss, however, relates to the medical treatment provided to claimant, and whether any State liability can attach to such treatment. As set forth in both the notice of intention and the claim, claimant contends that the surgical procedure on May 8, 2001 was negligently performed, forming the basis of his claim that the State failed to provide him with adequate medical care. There is no dispute that this procedure was performed at Samaritan Medical Center in Watertown, by one Dr. Simon Drew (see notice of intention, attached as Exhibit B to Items 1,2). Defendant contends that claimant has failed to allege either that Samaritan Medical Center is a State facility, or that Dr. Drew was a State employee when he performed this surgery. In support of this position, defendant has attached documents obtained via the internet from the Samaritan Health System website, establishing to the satisfaction of this Court that Samaritan Medical Center is a private healthcare provider, and not a State entity.

While it is well established that the State has a duty to provide reasonable and adequate medical care to the inmates incarcerated in its facilities (Rivers v State of New York, 159 AD2d 788, lv denied 76 NY2d 701), it is equally well established that the State is not liable for treatment provided to an inmate by an outside physician at a medical facility where the State lacks the element of control (Rivers v State of New York, supra).

Therefore, whether the State can potentially be liable for actions taken during the surgical procedure on May 8, 2001 depends upon the relationship, if any, between Dr. Drew and the State. Even though defendant is correct that claimant has not alleged that Dr. Drew was a State employee, defendant has not affirmatively established in this motion that there was in fact no formal relationship between the State and Dr. Drew. If the State can subsequently, affirmatively establish that no such relationship exists, the Court would then entertain another motion to dismiss. Based upon the documentation presently before the Court, however, this portion of defendant's motion must be denied.

Even if the State ultimately establishes that there was no formal employment relationship between Dr. Drew and the State, claimant has also alleged that the State failed to provide him with adequate medical care following the surgery.

Defendant, however, seeks to dismiss this aspect of the claim based upon a failure of claimant to specify the time when such claim arose, as required by Court of Claims Act § 11(b). A claim must contain allegations with regard to time and place of accrual sufficient to permit the State to investigate the basis of the claim (Speers v State of New York, 183 Misc 2d 907; affd 285 AD2d 872).

In this claim, claimant's allegations of inadequate medical care obviously occurred subsequent to the May 8, 2001 surgery, and any such care was provided while he was an inmate in the custody of the Department of Correctional Services. The State is therefore well able to review any such complaints of inadequate treatment through claimant's medical records maintained at the State correctional facilities. Therefore, the Court finds that claimant's failure to allege specific dates and times of alleged inadequate medical treatment within his claim does not constitute a fatal defect which would require dismissal of this claim.

Finally, defendant also contends that claimant failed to timely serve a notice of intention to file a claim, or a claim, within 90 days following accrual of his claim, as required by Court of Claims Act § 10(3). Defendant contends that the accrual of this claim should be measured from May 8, 2001, which was the date of claimant's surgery. Since a notice of intention was not served until February 27, 2002, defendant contends that claimant did not comply with the service requirements of Court of Claims Act § 10(3).

From a reading of the claim, however, and as discussed above, claimant not only alleges that the surgical procedure on May 8, 2001 was negligently performed, but also that he received inadequate follow-up care after the surgery, and that he has been continuously treated for this condition at State correctional facilities since the surgery. At this stage of the proceedings, these allegations of a continuing course of treatment are sufficient to withstand defendant's motion to dismiss for untimeliness.

Accordingly, based on the foregoing, it is

ORDERED, that Motion No. M-67787 is hereby DENIED, without prejudice.


June 15, 2004
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims