BYCZEK v. THE STATE OF NEW YORK, #2004-016-033, Claim No. 107390, Motion Nos.
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.
JOSEPH BYCZEK and CAMILLE BYCZEK
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
Alan C. Marin
Vitarelli, DeSorbo & LoiaconoBy: Louis S. DeSorbo, Esq.
Eliot Spitzer, Attorney GeneralBy: Rachel Goldberg, Esq., AAG
June 28, 2004
See also (multicaptioned
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
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.").
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
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
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
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
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.
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
In view of the foregoing, having reviewed the parties'
, 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
HON. ALAN C. MARIN
Judge of the Court of Claims
As the claim of Camille Byczek is derivative
of her husband's, references to claimant in the singular will be to Joseph
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.
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."