4) Filed Documents: Claim and Answer. Claimant commenced this action for
personal injuries allegedly incurred due to the medical malpractice/negligence
of Defendant. Specifically, Claimant alleges that, beginning in January of
2003, Defendant improperly diagnosed and treated his inflammatory bowel disease,
gastric irritations and Crohn's disease. Claimant served Defendant with a
notice of intention to file a claim on September 5, 2003. Claimant served
Defendant with the claim by regular first class mail on October 1, 2003.
Defendant brings this motion seeking dismissal of the claim. Defendant
asserts, as the Affidavit of Assistant Attorney General Wendy E. Morcio sets
forth, that service of the notice of intention to file a claim was untimely and
that service of the claim was both untimely and defective. Defendant has also
submitted the affidavit of Dr. Joseph T. Tan, supporting Defendant's contention
that it is entitled to summary judgment because the treatment Claimant received
did not deviate from contemporary medical standards.
Claimant has not responded to Defendant's motion.
Pursuant to Court of Claims Act § 10(3), a claim based upon personal
injury resulting from the negligence of an agent of the State, such as is
alleged here, must be filed within 90 days unless Claimant has served a notice
of intention to file a claim. Claimant alleges that his claim accrued in
January of 2003. He served his notice of intention to file a claim on September
5, 2003, more than 90 days later. However, Claimant also asserts that the
alleged malpractice continued throughout 2003. The continuous treatment
doctrine has been found to toll the 90-day period within which one must file the
claim (Collum v New York City Health & Hosp. Corp., 244 AD2d 380).
Accepting Claimant's allegations as true, as I must when construing such motions
(Leon v Martinez, 84 NY2d 83), I decline to dismiss Claimant's action on
the basis that it was not filed in a timely manner.
However, Court of Claims Act § 11(a) provides, in relevant part, that a
copy of the notice of intention to file a claim, and the claim "shall be served
personally or by certified mail, return receipt requested" upon the Attorney
General. Defendant has adequately demonstrated that service of the claim was
accomplished by regular first class mail rather than certified mail, return
receipt requested. A copy of the claim and the envelope in which it was served
is attached to Defendant's moving papers as exhibit B. Therefore, Claimant has
failed to meet the literal requirements of Court of Claims Act § 11 and his
claim must be dismissed (see Dreger v New York State Thruway Auth., 81
NY2d 721; Negron v State of New York, 257 AD2d 652; Philippe v State
of New York, 248 AD2d 827).
Alternatively, I also find that Defendant is entitled to summary judgment on
the issue of medical malpractice. In any application for summary judgment, the
moving party bears the heavy burden of establishing that he or she is entitled
to judgment as a matter of law. That party must tender evidence sufficient to
demonstrate the absence of any material issues of fact (Andre v Pomeroy,
35 NY2d 361; Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853).
Further, the evidence submitted must be viewed in the way which most benefits
the non-moving party (see Robinson v Strong Mem. Hosp., 98 AD2d
Defendant, through the affidavit of Joseph T. Tan, M. D., a licensed physician,
posits that Claimant's allegations of medical malpractice are without merit.
Dr. Tan adequately describes the course of Claimant's treatment with reference
to Claimant's relevant medical records, which are attached to Defendant's moving
papers as exhibit D. The records and Dr. Tan's affidavit indicate that the care
and treatment provided Claimant did not deviate from contemporary medical
When the moving party has successfully met its burden, the party who opposes a
summary judgment motion must "assemble, lay bare and reveal his proofs, in order
to show that the matters set up in his [pleading] are real and are capable of
being established upon a trial" (DiSabato v Soffes, 9 AD2d 297 at 301;
appeal dismissed, 11 AD2d 660). "Bald, conclusory assertions"
(Ehrlich v American Moninger Greenhouse Mfg. Corp., 26 NY2d 255, 259,
citing Kramer v Harris, 9 AD2d 282, 283) and the "shadowy semblance of an
issue" cannot, by themselves defeat a motion for summary judgment (DiSabato v
Soffes, supra, at 300, citing Hanrog Dist. Corp. v Hanioti, 10
Misc 2d, 659, 660).
Claimant has failed to respond to Defendant's motion papers and nothing
contained in Claimant's medical records contradicts Defendant's expert's
affidavit. I, therefore, find that Defendant is entitled to summary judgment
and dismissal of the claim on this basis.
Based upon the foregoing, it is
ORDERED, that Defendant's motion for dismissal of the claim is granted.
The Clerk of the Court is directed to close the file.