New York State Court of Claims

New York State Court of Claims

ADAMS v. THE STATE OF NEW YORK, #2004-031-169, Claim No. 108345, Motion No. M-69290


Claim served by regular mail failed to comply with Court of Claims Act § 11(a). Also, Claimant failed to rebut Defendant's showing that claim for medical malpractice is without merit. Claim dismissed

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:
New York State Attorney General
BY: WENDY E. MORCIO, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 8, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 through 4, were read on motion by Defendant to dismiss the claim for untimely and improper service, and for summary judgment:
  1. Notice of Motion, filed October 27, 2004;
2) Affidavit of Wendy E. Morcio, Esq., sworn to October 26, 2004, with attached exhibits;
3) Affidavit of Joseph T. Tan, M.D., sworn to October 25, 2004;
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 976).

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 standards.

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.

December 8, 2004
Rochester, New York

Judge of the Court of Claims