4-6 Filed Papers: Claim, Answer, Jennings v State of New York, Claim No.
109448, Motion No. M-68906, UID #2004-030-575, (Scuccimarra, J., filed October
6, 2004) After carefully reviewing the papers submitted and the applicable law
the motion is disposed of as follows:
Michael Jennings, the Claimant herein, alleges in Claim Number 109448 that
Defendant's agents failed to provide him with adequate medical care while he was
in the custody of the New York State Department of Correctional Services
(hereafter DOCS) at various correctional facilities. In its Answer, in addition
to general denials, the Defendant asserted ten affirmative defenses, including
the Sixth Affirmative Defense alleging that the claim is time-barred because the
Notice of Intention to file a Claim was not timely served, and thus did not
extend the time to serve and file the Claim.
In a prior Decision and Order, this Court granted Claimant's
motion to dismiss the Sixth
Affirmative Defense. [Jennings v State of New York
, Claim No. 109448,
Motion No. M-68906, UID# 2004-030-575, (Scuccimarra, J., filed October 6,
The Defendant now moves to dismiss the claim based upon the Sixth Affirmative
Defense, as well as other affirmative defenses raised that are related,
primarily, to timeliness and the adequacy of the Notice of Intention and the
Claim with respect to specificity under Court of Claims Act §11(b). See
also 22 NYCRR §206.6. In reaching its earlier determination on
Claimant's motion the Court also determined - impliedly - that the Claim was
timely and specific enough, and that the continuous treatment doctrine appeared
to apply. See McDermott v Torre, 56 NY2d 399, 405 (1982); Civil
Practice Law and Rules §214-a.
As noted in the Court's prior Decision and Order, Claimant benefits from the
application of the continuous treatment doctrine, at least until November 29,
2003, the date the Notice of Intention was served. Toxey v State of New
York, 279 AD2d 927, 929 (3d Dept 2001) The claim served and filed herein is
timely at least with respect to allegations up to and including November 29,
2003. In any event, Claimant's burden of establishing his Claim remains.
Accordingly, Defendant's Motion Number M-69120 is in all respects denied.