O'CONNOR v. THE STATE OF NEW YORK, #2004-019-517, Claim No. 107709, Motion Nos.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
FERRIS D. LEBOUS
WALTER, THAYER & MISHLER, P.C.BY: Lanny E. Walter, Esq.
HON. ELIOT SPITZER, ATTORNEY GENERALBY: James E. Shoemaker, Assistant Attorney General, of counsel
February 5, 2004
See also (multicaptioned
Claimant moves for an order of summary judgment striking the first affirmative
defense contained in the defendant's answer or, in the alternative, for
permission to file a late claim pursuant to Court of Claims Act (hereinafter
"CCA") 10 (6). The State of New York (hereinafter "State") opposes the motion
in all respects and cross-moves for dismissal pursuant to CCA 10 and 11.
This claim sounds in medical malpractice arising from dental treatment received
by claimant while he was incarcerated at Sullivan Correctional Facility
(hereinafter "Sullivan"). Claimant indicates that he originally had a permanent
fixed bridge covering five of his upper teeth designated as teeth #7 to #11.
The claim alleges that the State committed medical malpractice by refusing to
provide claimant with a new permanent bridge; not properly treating an abscess;
and forcing claimant to choose between surgery options over his preference of
obtaining a new permanent bridge. (Claim, ¶ ¶ 43-49).
The court will not list each and every date or event listed by claimant in this
record, but rather will attempt to summarize the relevant
July 1999: Dr. McGraw, dentist at Sullivan, discovered an abscess beneath
claimant's permanent fixed bridge and recommended surgery. No surgery scheduled
despite repeated inquiries by claimant.
February 22, 2000: Dr. Fratalone, oral surgeon at Sullivan, suggested
Apiceoctomy surgery. On this same date, claimant made written request for
purchase of a new permanent bridge to extend to other teeth after surgery.
(Claim, ¶ 7).
March 23, 2000: Appointment with Dr. Fratalone, requested surgery, but told
dentist would rather perform surgery at a different time of day.
October 19, 2000:
Appointment with Dr.
Fratalone, advised that surgery may result in loss of permanent bridge and
suggested that claimant "wait it out" until released from prison. (Claim,
¶ 11). Dr. Fratalone recommended that claimant "leave it alone...at this
juncture...." (Notice of Intention, p 3).
January 27, 2001: Claimant experienced severe pain in tooth.
January 28, 2001: Claimant went to emergency sick-call.
January 30, 2001: Appointment with Dr. Ahmed, new dentist at Sullivan, told to
make written request for root canal, first request not received. Provided
February 1, 2001:
Claimant went to emergency
sick-call; prescribed additional medications. Dr. Ahmed advised that tooth
extraction of tooth #7 necessary, rather than root canal, and use of removable
bridge. Claimant confused about change in proposed treatment and asks Dr. Ahmed
to explain in writing.
February 7, 2001: Appointment with Dr. Ahmed. Dr. Ahmed asked him to sign
"consent for extraction" form explaining tooth could not be saved. Claimant
signed the form but noted thereon that he was given no alternative. Alleges Dr.
Ahmed then changed his opinion and said would perform root canal. Dr. Ahmed
asked claimant to sign second consent form-for root canal. Claimant signed root
canal consent form but put notation on that he was "trusting himself to Dr.
Ahmed's care to save his tooth." (Notice of Intention, p 7). Claimant given
"refusing extraction" form, refused to sign, asked to
(Claim, ¶ ¶ 21-24).
Claimant files grievance.
February 8, 2001: Called to Dr. Ahmed's office and told to choose either a "root
canal with later apicoectomy [sic] surgery or extraction –
or nothing." (Notice of Intention, p 7; Claim, ¶ 25 ). Claimant noted
that he "still preferred overall to have a permanent replacement bridge" but
selected the root canal with Apiceoctomy option. (Notice of Intention, p
February 14, 2001: Root canal performed.
March 1, 2001: Apiceoctomy performed, told by Dr. Fratalone it would probably
weaken permanent bridge causing loss of same.
April 5, 2001: Notice of intention served on the Office of the Attorney
October 19, 2001: Dr. Ahmed "filled a gap between the inner gingeval
[sic] line and [claimant's] permanent bridge at which tooth number 7 was
exposed but failed to fill a similar gap in the adjascent [sic] tooth
between the outer gingeval [sic] line and [claimant's] permanent
bridge at which tooth number 8 is exposed...." (Claim, ¶ 39; emphases in
Additionally, the court notes that scattered throughout claimant's papers are
complaints relative to his dissatisfaction with DOCS' denial of the purchase of
a new permanent replacement bridge including specific references thereto in his
notice of intention. (Claim, ¶ ¶ 7, 13, 25, 30, 36, 37, 42; Notice of
Intention attached as claimant's Exhibit 2).
A notice of intention was served on the Office of the Attorney General on April
5, 2001. by certified mail, return receipt requested. The claim was filed with
the Clerk of the Court on May 5, 2003 and served on the Office of the Attorney
General on May 12, 2003. The State filed a Verified Answer on June 16, 2003
containing various affirmative defenses including the failure to comply with CCA
State's cross-motion for dismissal
The court will first address the State's cross-motion, since a determination
that this claim was timely filed and served would obviate the need to consider
the initial motion for leave to file a late claim. CCA § 10 (3) provides
that with respect to negligence or unintentional tort causes of action a
claimant who serves the Office of the Attorney General with a written notice of
intention to file a claim within 90 days of accrual is provided two years after
the date of accrual within which to serve and file a
As such, the court must determine the date of accrual of the instant claim.
Claimant argues that he is entitled to a tolling of any limitations period due
to the continuous treatment doctrine since he has been receiving dental
treatment since November 2000. In the alternative, claimant argues that this
claim should be deemed to have accrued on March 15, 2002 when he was transferred
out of Sullivan or on March 18, 2002 when he received a formal denial for the
replacement of his permanent bridge. The State contends this claim accrued in
October 2000 when claimant originally became dissatisfied with his dental
treatment or, in the alternative, on February 14, 2001 when the root canal was
This court finds that this claim accrued, at the latest, as of the date of the
service of the notice of intention on April 5,
The court notes that this notice of
intention expressly includes references to the State's alleged medical
malpractice resulting from a failure to provide claimant with a permanent
replacement bridge. Even assuming the applicability of the continuous treatment
doctrine on these facts, the Third Department has stated that a claimant's
initiation of the legal process "[c]learly severed any continuing relationship
of trust in the physician-patient relationship and ended any 'continuous
treatment tolling' at that point [citation omitted]", namely when he served his
notice of intention upon defendant. (Toxey v State of New York
, 279 AD2d
927, 928-929, lv denied
96 NY2d 711). As such, under this principle,
claimant's ability to rely on any continuous treatment tolling ended upon his
service of the notice of intention on April 5, 2001. So, while the service of
that document extended the time for commencing his claim under CCA 10 & 11,
it also cut off the toll of the accrual date under the continuous treatment
doctrine. (Chestnut v State of New York
, Ct Cl, February 13, 2001, Bell,
J., Claim No. 102155, Motion Nos. M-62287 and M-62989 [UID No.
Accordingly, even if the
continuous treatment doctrine were applicable, the accrual date would be at the
latest April 5, 2001 (the date of service of the notice of intention), thereby
providing claimant two years thereafter to file and serve a claim. As such, two
years after the cessation of the toll of the accrual date (April 5, 2001 - the
date the notice of intention was served), was April 5, 2003. This claim was
filed May 5, 2003 and served May 12, 2003, beyond said two year period.
Consequently, this claim is untimely and, as such, the State's cross-motion for
dismissal of this claim must be granted. In view of the court's determination
granting the State's cross-motion to dismiss, the portion of claimant's motion
seeking summary judgment striking the State's first affirmative defense is
denied as moot. Thus, the court will now turn to claimant's motion for
permission to late file pursuant to CCA 10 (6).
Claimant's motion for permission to late file pursuant to CCA 10
The threshold consideration on any motion seeking permission to file a late
claim is jurisdictional in nature, namely whether the motion was filed within
the statute of limitations period attributable to the underlying cause(s) of
action. (CCA 10 ). Here, the underlying cause of action sounds in medical
malpractice which carries a two and one-half year limitation period. (CPLR
214-a). As such, this motion for permission to late file had to be filed within
two and one-half years from the date of accrual in order to be timely. As noted
above, the latest possible date of accrual is the date claimant served a notice
of intention on the State, namely April 5, 2001. Therefore, this motion had to
be filed within two and one-half years from that date of accrual in order to be
timely, namely October 5, 2003. It was not. Claimant's motion for permission
to late file was not filed with the Clerk of the Court until October 22, 2003
which is after the expiration of the two and one-half year period calculated
from the date of accrual. No court has the discretion to waive this statutory
requirement as it is a mandatory prerequisite to the exercise of jurisdiction by
the court. In sum, this court does not have the jurisdiction to hear this
motion for permission to file a late claim. As such, the court need not reach a
discussion of the enumerated factors set forth in CCA 10 (6).
Accordingly, for the reasons stated above, IT IS ORDERED, that the State's
cross-motion for dismissal, Motion No. CM-67898, is GRANTED and Claim No. 107709
is DISMISSED. Claimant's motion, Motion No. M-67550, for an order of summary
judgment striking the State's first affirmative defense or, in the alternative,
for permission to file a late claim pursuant to CCA 10 (6) is DENIED.
Binghamton, New York
HON. FERRIS D. LEBOUS
Judge of the Court
The Court has considered the following papers in connection with these
Claim, filed May 5, 2003.
Verified Answer, filed June 16, 2003.
Notice of Motion No. M-67550, dated October 21, 2003, and filed October 22,
Affirmation of Lanny E. Walter, Esq., in support of motion, dated October 21,
2003, with attached exhibits.
Memorandum of Law in support of motion, dated October 21, 2003.
Notice of Cross-Motion No. CM-67898, dated January 13, 2004, and received
January 15, 2004.
Affirmation of James E. Shoemaker, AAG, in support of cross-motion and in
opposition to motion, dated January 6, 2004, and filed January 9, 2004, with
Memorandum of Law in support of cross-motion, dated January 6, 2004.
Reply Affirmation of Lanny E. Walter, Esq., in support of motion and in
opposition to cross-motion, dated February 2, 2004, and filed February 3,
Reply Memorandum of Law, in support of motion and in opposition to
cross-motion, dated February 2, 2004.
For example, the court has not listed every
date on which claimant alleges he wrote letters to or received letters from
various correctional officials. This time line is created from claimant's
notice of intention, claim, and moving papers.
This date is alternately referred to as
October 18, 2000 and October 19, 2000. The court will give claimant the benefit
of the doubt and use the date October 19, 2000.
This date also listed as February 2, 2001.
(Claim, ¶ 16).
Claimant alleges that the "consent for
extraction" form is now missing. (Claim, ¶ 28).
The court notes that the CPLR Article 2
statute of limitations does not become relevant to Court of Claims actions
unless and until the claimant seeks permission to file an untimely claim
pursuant to Court of Claims Act §10 (6). As such, the court need not
address the two and one-half year statute of limitations period applicable to
medical malpractice actions under CPLR 214-a unless and until it addresses
claimant's 10 (6) motion.
The continuous treatment doctrine provides
that a limitations period will not begin to run until the end of the course of
treatment. (McDermott v Torre
, 56 NY2d 399, 405). However, a lack of
medical treatment does not permit the application of the continuous treatment
doctrine. (Young v New York City Health & Hosps
NY2d 291, 296-297; Nykorchuck v Henriques
, 78 NY2d 255, 258-259).
Unreported decisions from the Court of Claims
are available via the Internet at