New York State Court of Claims

New York State Court of Claims

GUZMAN v. THE STATE OF NEW YORK, #2004-030-600, Claim No. 109912, Motion No. M-69334


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:
Third-party defendant's attorney:

Signature date:
December 10, 2004
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1 to 3 were read and considered on Defendant's pre-answer motion to dismiss the claim:
1,2 Notice of Motion; Affirmation in Support by Jeane L. Strickland Smith, Assistant Attorney General

  1. Filed papers: Claim

Judy Guzman, the Claimant herein, alleges in Claim Number 109912 that Defendant's agents failed to provide her with adequate and timely medical care while she was incarcerated at various correctional facilities, in the custody of the New York State Department of Correctional Services [ hereafter DOCS]. Specifically, she states that she received ". . . inadequate medical treatment from October 2003 to the present . . ." after an injury she suffered to her knee at a farm work program in September 2003. [See Claim No. 109912, ¶¶ 2 and 3]. She also indicates that Defendant's agents were negligent in failing to provide a safe work environment in the first instance, in failing to provide proper training to inmates new to farm work, failing to post warning notices concerning dangers involved in farm work, and in failing to remove claimant from the work crew once she was injured, but these allegations are not specific as to any time frame. Notably, the last date of medical treatment alleged in the claim is April 2004.[1] She states that a Notice of Intention was served on July 6, 2004, but no copy of same is appended.

The Claim itself was served upon the Office of the Attorney General on October 1, 2004. [See Exhibit 1 Affirmation in Support]. The claim was filed in the Office of the Chief Clerk of the Court of Claims on October 1, 2004. An affidavit of service filed by Claimant indicates that the Claim was served upon the Attorney General by certified mail, return receipt requested as required. Court of Claims Act §11; 22 NYCRR §206.5(a).

The Defendant moves to dismiss the Claim based upon a failure to timely serve the Defendant and to timely file the Claim. Court of Claims Act §§10 and 11. Based upon the actual facts stated in the claim, it accrued at the latest on April 29, 2004, and was served on the Attorney General's Office on October 1, 2004: more than ninety (90) days after the accrual date. Court of Claims Act §10(3). Although the allegation that a notice of intention was served upon the Attorney General is contained in the claim, there is no proof of such service in order to toll the period of limitations allowed.

Additionally, and as argued by the Assistant Attorney General, the Claimant cannot avail herself of the continuous treatment doctrine, to further extend the time period within which her claim should have been served and filed "to the present" as averred in her claim, particularly because she does not allege any action by Defendant's agents beyond April 2004.

Under the continuous treatment doctrine, the time in which to bring a malpractice action is stayed "when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint." Borgia v City of New York, 12 NY2d 151, 155 (1962). The underlying principles behind the application of the doctrine are two-fold: first, it is in the patient's best interest to continue ongoing medical treatment and second, the initial medical practitioner is in the best position to identify and correct his own malpractice. See Nykorchuck v Henriques, 78 NY2d 255, 258-259 (1991); Toxey v State of New York, 279 AD2d 927, 928 (3d Dept 2001), lv denied 96 NY2d 711 (2001). Indeed, when a notice of intention is served - the "initiation of the legal process" - any continued relationship of trust between doctor and patient is severed. Toxey v State of New York, supra, at 928-929.

Moreover, when the continuing treatment is provided by someone other than the allegedly negligent practitioner there must be an agency or other relevant relationship between the health care providers. Meath v Mishrick, 68 NY2d 992, 994 (1986); McDermott v Torre, 56 NY2d 399, 403 (1982). Common ownership of correctional facilities by the Defendant is insufficient to trigger the continuous treatment doctrine. Allende v New York City Health and Hospitals Corporation, 90 NY2d 333, 340 (1997).

As noted by the Assistant Attorney General, the doctrine is inapplicable to the lack of medical treatment. See Francis v State of New York, Claim No. 108347, Motion No. M-67697, UID No. 2003-019-577 (Lebous, J., December 22, 2003).

This defense concerning the statute of limitations has been raised with sufficient particularity in a pre-answer motion as required by Court of Claims Act §11(c), and the cases decided thereunder. See Knight v State of New York; 177 Misc 2d 181 (Ct Cl 1998).

Because the applicable statute provides ". . . no judgment shall be granted in favor of any claimant unless such claimant shall have complied with the provisions of this section applicable to his claim . . ." [ Court of Claims Act §10], the provisions concerning service and filing have been strictly construed. See e.g. Welch v State of New York, 286 AD2d 496, 729 NYS2d 527, 529 (2d Dept 2001); Conner v State of New York, 268 AD2d 706, 707 (3d Dept 2000).

Accordingly, Defendant's motion to dismiss based upon a failure to serve and file the claim within the statute of limitations period, is hereby granted, and Claim Number 109912 is dismissed in its entirety.

December 10, 2004
White Plains, New York

Judge of the Court of Claims

[1] A review of the documents attached to the claim shows a consultation report signed on April 29, 2004. [Exhibit B to Claim].