New York State Court of Claims

New York State Court of Claims

DAVIS v. THE STATE OF NEW YORK, #2004-013-046, Claim No. 107517, Motion Nos. M-67116, CM-67371


Defendant's cross-motion to dismiss the claim as untimely is denied as the doctrine of continuous treatment applies. That part of Defendant's motion seeking dismissal of the claim on the ground that Claimant failed to state a cause of action is also denied. Claimant's motion to file a late claim is reserved.

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:
Attorney General of the State of New York
Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 10, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


On October 15, 2003, the following papers were read on Claimant's motion for permission to file a late claim pursuant to Court of Claims Act §10(6), and on cross-motion by Defendant for an order dismissing Claim No. 107517:

Claimant's Notice of Motion (M-67116); Affirmation in Support and Exhibits Annexed; Affidavit of Dr. Warren

Claimant's Reply Affirmation in Support of Late Claim Application and in Opposition to Cross-Motion to Dismiss and Affidavit in Opposition

Defendant's Notice of Cross-Motion with Attached Affirmations and Exhibits

Defendant's Reply Affirmation on Cross-Motion to Dismiss

Defendant's Affirmation dated September 9, 2003 with Exhibit Annexed

Affidavit of Virginia Davis sworn to September 30, 2003

Filed Papers: Claim; Answer; Bill of Particulars

Claimant seeks permission to file a late claim pursuant to Court of Claims Act §10(6). The underlying causes of action sound in medical malpractice, negligent supervision and deliberate indifference, and involve purported malpractice while Claimant was an inmate at the Albion Correctional Facility (Albion). In opposing the late claim application, Defendant makes a cross-motion to dismiss the claim.

As background for discussion of the legal issues, it is alleged, without dispute, that Claimant was born with hydrocephaly, for which a shunt is surgically implanted and which occasionally needs "revision." It is alleged that Claimant exhibited signs and symptoms consistent with a shunt malfunction beginning in December 1999 and continuing to April 2001; a doctor recommended on January 18, 2001 that Claimant be checked for such shunt malfunction, but it is further alleged that Defendant did not follow up on that recommendation until April 20, 2001. It is thus contended that, as a result of the delay and the negligence of the Defendant in providing medical care and in supervising the provision of medical care, Claimant suffered a permanent loss of vision. It is also asserted that Defendant exhibited deliberate indifference to Claimant's serious medical needs.

The procedural history of this matter starts with Claimant's pro se notice of intention to file a claim which was dated August 17, 2001, and was served by certified mail, return receipt requested, upon the Defendant on August 29, 2001 (see Exhibit A to Defendant's cross-motion). Thereafter, Claimant, now represented by counsel, filed the instant claim on March 24, 2003. In its answer, the Defendant alleges several affirmative defenses relating to timeliness.

To preserve her rights, without conceding the untimeliness alleged by the Defendant, Claimant has made a motion for permission to file a late claim. In response thereto, in addition to opposing that relief, the Defendant has made a cross-motion to dismiss the claim. Since a determination of the cross-motion to dismiss the claim could obviate the necessity of deciding the late claim application, I will address the cross-motion first.

Defendant specifies the grounds for dismissal as Point I: the claim is untimely filed (¶¶ 8 to 13 of Defendant's affirmation in support); Point II: the proposed claim fails to state a cause of action for medical malpractice against the State of New York (¶¶ 14 to 28 of Defendant's affirmation in support), and Point III: Claimant fails to state a cause of action for constitutional violations (¶¶ 29 to 31 of Defendant's affirmation in support).

The cross-motion reviews the pro se notice of intention which alleges that the claim arose on August 17, 2001 at the Medical Department at Albion and alleges "[i]nadequate medical treatment from December of 1999 to present" and includes loss of eyesight as one of the injuries.

The claim alleges the Defendant's failure to provide adequate medical care from the time of Claimant's transfer from Bedford Hills Correctional Facility to Albion on or about November 24, 1999, and more specifically from December 1999, when Claimant first complained of "symptoms consistent with the buildup of cerebrospinal fluid," until such time as it was too late to prevent Claimant from suffering permanent loss of vision. The claim addresses the Defendant's failure to take reasonable steps to prevent complications arising from Claimant's medical condition, negligent delivery of medical care, departure from the accepted standard of medical care, negligent supervision of the provision of medical care, and deliberate indifference to Claimant's serious health needs. The claim, verified on March 20, 2003, asserts that Claimant has been under the Defendant's "continuous care for the treatment of her hydrocephaly" since she entered prison. It also asserts violations of Claimant's rights under provisions of the New York State Constitution.

Defendant notes that neither the claim nor the bill of particulars refers or alludes to any act of omission or commission or any treatment which took place after April 20, 2001, and indeed focuses almost entirely on the period from January 18, 2001 until April 20, 2001. Going further, Defendant contends that the notice of intention, while asserting an accrual date of August 17, 2001 (which is contemporaneous with the date of the notice of intention), does not describe any treatment or other purportedly culpable act that could constitute continuous treatment beyond April 20, 2001, including those allegations contained within the claim and bill of particulars.

Defendant thus urges that the claim actually accrued on or about April 20, 2001, at the latest, and that the notice of intention served on August 29, 2001 is untimely as being more than 90 days after accrual of the claim (Court of Claims Act §11[a][i]). That being the case, the claim, served and filed in March 2003, is purportedly untimely, as the untimely notice of intention did not extend Claimant's time to serve and file her claim to two years after the accrual of the underlying causes of action (Court of Claims Act §10[3]). I note that Defendant preserved these defenses with particularity in its fourth and seventh affirmative defenses (Court of Claims Act §11[c]).

The papers before me raise compelling arguments on both sides. The preeminent issue for me to determine is whether the doctrine of continuous treatment applies. In response to the Defendant's assertions, to dispute the untimeliness argument and to demonstrate at least the continuity of treatment within 90 days of the service of the notice of intention, Claimant appends as Exhibit B to her reply affirmation, a May 10, 2001 request by the Department of Correctional Services (DOCS) from Dr. Cole-Hoover (a DOCS employee), for a consultation with Dr. Seth M. Zeidman of the Department of Neurological Surgery at Strong Memorial Hospital, along with a copy of the consultation report.

Claimant also attaches, as Exhibit A to her reply affirmation, a DOCS Health Services System Request and Report of Consultation dated August 13, 2001, noting a referral and review by Gwendolyn Cole-Hoover, MD, to Strong Memorial Hospital Department of Surgery/Neurosurgery, with handwritten notes thereon dated August 23, 2001 and/or August 24, 2001. Claimant proffers this copy of her medical records maintained by the Defendant to reflect the continuity of medical treatment overseen by the Defendant. The date of this referral on August 13, 2001 and the date of the consultation some ten days later, envelop the date of the notice of intention to file a claim (August 17, 2001). To the extent that this provides support for Claimant's assertion of continuous treatment, I find it persuasive. Claimant alleges in her affidavit in support that it was at this August 23, 2001 examination when she first learned that her vision had been permanently impaired, and that is why she served her notice of intention almost contemporaneously.

One can get into a prolonged debate whether Claimant's medical treatment by DOCS (which at all relevant times had complete custody and control over the Claimant by virtue of her imprisonment) constitutes continuous medical treatment or mere oversight, but it strikes me that this is an issue that must be further fleshed out during discovery. At the very least, it does not warrant a dismissal based upon untimeliness when related medical treatment was ongoing within days of the service of the notice of intention. I presuppose nothing with respect to the alleged acts or omissions of the Defendant, except to reject its timeliness arguments.

To be sure, the Defendant argues that Claimant has failed in her burden of demonstrating that she was treated by DOCS physicians at any time after she returned to Albion after her surgery at Strong Memorial Hospital, and thus she is not entitled to the tolling of the statute of limitations (Matter of Daniel J. v New York City Health & Hosp. Corp., 77 NY2d 630). Gordon v Magun (83 NY2d 881), however, does not support Defendant's arguments, because there the visits to the doctor were more than nine months apart and the first visit was a consultation for a dermatologist to determine whether treatments for psoriasis might harm the plaintiff's liver, while the second examination was a referral from an internist related to abdominal swelling. The Court of Appeals dismissed the action because the consultations were for wholly different purposes and not for a particular condition. An additional, perhaps more significant, distinction is that that decision was based upon a summary judgment motion, where all discovery had been completed and was before the court.

Similarly, Swift v Colman (196 AD2d 150), also cited in support by the Defendant, was rendered after a trial. Whether the claim at bar can be said to parallel the "continuing nature of a diagnosis or misdiagnosis" which does not constitute continuous treatment, or whether Claimant's return visits were merely to have a condition checked which ostensibly are also insufficient to invoke the doctrine (id. at 153), cannot be determined on the papers before me. The Swift court remitted the matter because it also wanted the fact finder to determine whether further treatment was explicitly anticipated and whether a continuous relationship of trust and confidence existed (id. at 153-154). Here, too, there remain factual determinations that cannot be resolved on these moving papers, and should abide either a summary judgment motion after the completion of discovery, or a trial.

In similar circumstances where an inmate could not be hospitalized without authorization from DOCS, the Third Department has held there are questions of fact which should be determined "after hearing the relevant evidence [citations omitted].... [to determine]... whether there was a continuing relationship between claimant and the physicians at [the facility] during the time claimant was treated at [outside hospitals] ... so as to form a sufficient basis for application of the continuous treatment doctrine [citations omitted]" (Ogle v State of New York, 142 AD2d 37, 40).

Accordingly I find, for the part of this cross-motion which seeks dismissal on grounds of untimeliness, that Claimant has sufficiently alleged the existence of continuous treatment within 90 days of service of the notice of intention, and thus the claim served and filed within two years of the service of the notice of intention is not untimely.

Defendant's Point II, entitled "The proposed claim fails to state a cause of action for medical malpractice against the State of New York," does make limited reference to the claim itself, but its focus is almost exclusively devoted to the proposed claim. Defendant's arguments do not address the claim and do not support dismissal of the claim, they only offer resistance to the late claim application. Furthermore, to the extent that Defendant seeks dismissal for the failure to state a cause of action against the State of New York (CPLR 3211[a][7]), Claimant argues that she is entitled to have the Court "accord the complaint a liberal construction, assume its factual allegations to be true, draw every possible favorable inference therefrom and determine only whether any cognizable cause of action has been alleged [citation omitted]" (Bergler v Bergler, 288 AD2d 880 [4th Department]). That inference, with respect to motions to dismiss, pertains to those which rely upon an alleged failure to state a cause of action. Here, drawing the inferences favorably toward Claimant as I must, a cognizable cause of action has been alleged. Accordingly, that part of Defendant's cross-motion is denied.

In considering the cause[s] of action sounding in deliberate indifference, Claimant acknowledges that she does not rely upon the United States Constitution or 42 USC §1983, but rather the jurisdiction of the Court of Claims over state constitutional torts in violation of the New York State Constitution (Brown v State of New York, 89 NY2d 172), and relying upon De La Rosa v State of New York (173 Misc 2d 1007).

Generally, such a cause of action may arise if "(1) the constitutional provision is self-executing; (2) the substantive right is firmly established; (3) the implied tort is necessary or appropriate to ensure the effectiveness of the provision; and (4) the claimant has no common law or statutory remedy available to him (see, Brown v State of New York, 89 NY2d 172; Remley v State of New York, 174 Misc 2d 523, 526)" (Zulu v State of New York, Ct Cl, UID #2001-013-006 [Claim Nos. 96973 and 96074 - Motion Nos. M-63183 and M-63184], May 21, 2001, Patti, J.)[1].

De La Rosa v State of New York (173 Misc 2d 1007, supra) held that "[i]t would appear that New York State's constitutional provision prohibiting cruel and unusual punishments meets the Brown criteria for permitting a constitutional tort claim for money damages in this court when there is a deliberately indifferent response by prison officials to the medical needs of inmates" (id. 1010).

Notably, the De La Rosa claim was dismissed for the failure of proof after discovery and after trial, and I am disinclined to dismiss this cause of action prior to discovery. This is a close call for me, as I have the expectation that after discovery is complete the Defendant may renew its call for dismissal, seeking summary judgment (see, D'Aprice v State of New York, Ct Cl, UID #2001-005-505 [Claim Nos. 99693 and 102068 - Motion Nos. M-61151 and M-61424], March 16, 2001, Corbett J., where Judge Corbett dismissed the claim finding that claimant had been taken to an outside medical facility for examination and treatment, and concluded that the Defendant's actions could hardly have been characterized as indifferent, let alone deliberate), or because there are common law and statutory remedies available. But any such conclusion may be premature without discovery. Accordingly, that part of Defendant's motion is denied at this time.

By denying the Defendant's cross-motion to dismiss in its entirety, the relief sought in the Claimant's motion, for permission to file a late claim, would appear to be moot. Nonetheless, in the event that the Defendant chooses to appeal my denial of its motion, and were it to be successful, Claimant might be foreclosed from seeking late claim relief because of the time constraints of CPLR article 2 (see, Court of Claims Act §10[6]). Accordingly, in the interests of justice, if Defendant appeals this decision and order, decision on the Claimant's motion is reserved. However, if the Defendant chooses not to appeal my decision and order herein, then after the statutory period permitted, to wit, 30 days after service of a file-stamped copy of this order, the Claimant's motion will be denied.

September 10, 2004
Rochester, New York

Judge of the Court of Claims

  1. [1]This and other selected unpublished decisions and orders of the Court of Claims are available via the internet at