New York State Court of Claims

New York State Court of Claims

BYCZEK v. THE STATE OF NEW YORK, #2004-016-033, Claim No. 107390, Motion Nos. M-68010, CM-68174


Motion to dismiss timeliness affirmative defense on the grounds of continuous treatment, or in the alternative, allowing the medical malpractice claim to be filed nunc pro tunc, was denied. Cross-motion to dismiss on the grounds of timeliness was granted.

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):
Alan C. Marin
Claimant's attorney:
Vitarelli, DeSorbo & LoiaconoBy: Louis S. DeSorbo, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Rachel Goldberg, Esq., AAG
Third-party defendant's attorney:

Signature date:
June 28, 2004
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is claimants' motion for an order dismissing defendant's first affirmative defense (which asserts that the claim was not timely served and filed pursuant to the Court of Claims Act) or, in the alternative, permitting the claim to be filed nunc pro tunc.[1] Claimants also request that defendant be ordered to provide them with certain of Joseph Byczek's medical records. Defendant cross-moves to dismiss. In the claim, it is alleged that on two separate occasions in April of 2002, Joseph Byczek was admitted to the State University of New York Downstate Medical Center ("Downstate") "for treatment for a bladder condition and blood in the urine." It is further alleged that during the course of such treatment, Mr. Byczek "had various procedures and testing performed on him including a chest x-ray. The results of said x-ray, together with signs and symptoms displayed by claimant, were consistent with early stage carcinoma of the lungs. [Defendant] . . . [was] negligent in that [it] failed to properly diagnose and treat claimant and failed to properly read and interpret the diagnostic films and tests taken in April of 2002." Claim, ¶¶5(a) and (b).

Additional detail is provided in the February 4, 2004 affirmation of Louis S. DeSorbo (the "DeSorbo Aff.").[2] It is explained that the aforementioned x-ray was taken on April 4, 2002, after which claimant was admitted on April 9, 2002 for a surgical procedure to remove a bladder tumor. He was discharged on April 16, 2002 and was seen periodically over the next few months by a urologist as well as a cardiologist. See ¶¶6 and 7 of the DeSorbo Aff.

It is asserted that on December 25, 2002, claimant returned to Downstate "for various reasons including chest pains and a bladder infection. Claimant was treated for the infections and was told he needed another Bladder Surgery . . . In preparation for the surgery, claimant underwent various pre-surgery testing and had to be cleared by his cardiologist. The tests included another series of chest x-rays January 23, 2003 and January 29, 2003. These x-rays were reviewed by claimant's cardiologist as part of his clearance for surgery . . . During claimant's pre-surgery meeting . . . claimant learned for the first time that [he] had [a] type of mass or tumor in [his] lungs. The cardiologist informed Claimant that after reviewing the January 2003 x-ray, he decided to pull claimant's medical file. Upon review of claimant's medical history file, the tumors and masses were evident on claimant's April 2002 x-ray. Claimant explained to the cardiologist that he was never informed of a problem with tumors or masses in [his] lungs before and that [the urologist] had never made any referrals to any other specialists to investigate this problem. Claimant's cardiologist expressed shock to claimant that nothing was done in April of 2002. . . Claimant then had [a] follow up . . . CT scan and full body PET scan which confirmed the diagnosis of lung cancer. . ." See ¶¶7-9 of the DeSorbo Aff.
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Claimants describe this claim as "essentially a failure to diagnose and treat lung cancer." Specifically, claimants assert that when the April 2002 x-ray was taken, defendant failed to act upon it in that "[n]o referral was given and no further studies were performed or ordered." See ¶¶ 3-4 of the March 15, 2004 affirmation of Louis S. DeSorbo.

Defendant's first affirmative defense states that "[t]he Court lacks jurisdiction over the claim due to [claimants'] failure to timely serve the claim or any notice of intention upon the Attorney General's office and to timely file the claim with the Court of Claims, in accordance with Court of Claims Act Sections 10 and 11, which requires [service] and filing of the claim, or service of the notice of intention, within ninety days of the accrual date."

It is undisputed that the claim, which was filed on February 27, 2003 and served on February 28, 2003, was not filed and served within 90 days of the April 2002 chest x-ray. Claimants maintain that it is nonetheless timely because of the doctrine of continuous treatment, arguing that claimant was treated for "a urinary tract infection and a bladder problem from April 2002 up to an including January 2003," and that the February 2003 service and filing of the claim was done within 90 days of such January 2003 treatment. See ¶¶ 12 & 16 of the DeSorbo Aff.

Under the continuous treatment doctrine, codified in CPLR §214-a, the 90-day period for filing and service of a claim does not begin to run until the end of a course of treatment, where such course of treatment: (1) includes the wrongful acts or omissions complained of; (2) has run continuously; and (3) is related to the same original condition or complaint. See, e.g., Young v New York City Health & Hospitals Corporation, 91 NY2d 291, 670 NYS2d 169 (1998).

In Young, plaintiff went to defendants' clinic on March 29, 1990 to complain of breast pain. She subsequently had a mammogram on April 18, 1990. A mammogram report was prepared on April 25, 1990, which revealed abnormalities in plaintiff's left breast and which recommended a biopsy or follow up in three months. The test results were not communicated to plaintiff. On June 18, 1990 and September 29, 1990, plaintiff returned to the same clinic for treatment of an unrelated condition. On November 14, 1990, the clinic called plaintiff and instructed her to return in connection with the mammogram. When she returned on November 17, 1990, she was told for the first time of the abnormalities in the mammogram and had a second mammogram, which confirmed the earlier findings. A subsequent biopsy revealed cancer and plaintiff then had a mastectomy at the clinic on March 27, 1991 and was provided with postoperative care through July 17, 1991.

Plaintiff filed a notice of claim against defendants on June 14, 1991 and commenced the action on February 4, 1992. Defendants moved to dismiss on the grounds that the notice of claim was not filed within 90 days of accrual. Plaintiff argued that the continuous treatment doctrine applied, maintaining that her treatment commenced on March 29, 1990 and continued through her July 1991 postoperative care. The Court of Appeals held that the continuous treatment doctrine did not apply as plaintiff's periodic visits to the same clinic for treatment of unrelated health conditions did not establish a course of treatment for the breast condition, finding that she alleged "nothing more than defendants' failure to timely diagnose and establish a course of treatment for her breast condition, omissions that do not amount to a ‘course of treatment' . . . Plaintiff's concession and conduct indicate that she did not contemplate further treatment by defendant of any breast condition prior to November 17, 1990, when she was advised of the abnormal mammography results and treatment for that condition commenced. Given plaintiff's lack of awareness of a condition warranting further treatment, the purpose of the continuous treatment doctrine would not be served by its application here." 91 NY2d at 297, 670 NYS2d at 173.

As in Young, claimant in the instant case was unaware of the tumors or masses in his lungs prior to January of 2003 when he was advised of his condition. Accordingly, he could not have contemplated further treatment for the lung condition prior to January of 2003. The continuous treatment doctrine thus does not apply and the filing and service of the Byczeks' claim on February 27 and 28, 2003, respectively, were untimely pursuant to §10.3 of the Court of Claims Act.

"It is well established that compliance with sections 10 and 11 of the Court of Claims Act pertaining to the timeliness of filing and service requirements respecting claims and notices of intention to file claims constitutes a jurisdictional prerequisite to the institution and maintenance of a claim against the State, and accordingly, must be strictly construed . . ." Byrne v State of New York, 104 AD2d 782, 783, 480 NYS2d 225, 227 (2d Dept 1984), lv denied, 64 NY2d 607, 488 NYS2d 1023 (1985) (citations omitted). See also Mallory v State of New York, 196 AD2d 925, 601 NYS2d 972 (3d Dept 1993). In short, this Court lacks jurisdiction over claim no. 107390.
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With respect to claimants' request that the Court permit the nunc pro tunc filing of their claim, this relief is not available to cure the jurisdictional defect caused by the failure to timely file the claim. See, e.g., Byrne v State of New York, supra.

It should be noted that §10.6 of the Court of Claims Act provides that in the case where a claim is not timely filed and served, the Court may permit the filing and service of a late claim under certain circumstances. Section 10.6 enumerates six factors to be considered and requires that an application thereunder be made upon motion. In the instant case, while the DeSorbo Aff. makes reference to a "late notice of claim," claimants' notice of motion contains no application for permission to file a late claim. If claimants choose to make such a motion, §10.6 requires that it be made before the statute of limitations on the alleged April 2002 malpractice has run.

Finally, with regard to medical records, claimants state that they are in possession of records going back to April 2002, but seek earlier records. Defendant states that "the Medical Records [D]epartment of Downstate Medical Center sent [claimants'] counsel an invoice for $810.38 to cover the cost of the requested records, but . . . no payment has been received. All of the requested Downstate records will be sent to claimant's counsel as soon as the payment for them is received." See ¶12 of the March 10, 2004 affirmation of Rachel Goldberg. Accordingly, such records are available for inclusion in claimants' motion papers should they seek to move for permission to file a late claim.

In view of the foregoing, having reviewed the parties' submissions[3], IT IS ORDERED that motion no. M-68010 be denied, that cross-motion no. CM-68174 be granted and that claim no. 107390 be dismissed.

June 28, 2004
New York, New York

Judge of the Court of Claims

  1. [1]As the claim of Camille Byczek is derivative of her husband's, references to claimant in the singular will be to Joseph Byczek.
  2. [2]According to Mr. DeSorbo, the facts contained in his affirmation were "compiled through conversations with the claimants and the limited medical records received." See ¶5 of the DeSorbo Aff.
  3. [3]The following were reviewed: claimants' notice of motion with affirmation in support and exhibits 1-3; defendant's notice of cross-motion with "Affirmation in Support of Cross-Motion and in Opposition to Claimants' Motion" and exhibits A and B; and claimants' "Affirmation in Opposition to Defendant's Motion and in Reply."