New York State Court of Claims

New York State Court of Claims

BERKOWITZ v. THE STATE OF NEW YORK, #2004-033-064, Claim No. 108296, Motion No. M-68065


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):

James J. Lack
Claimant's attorney:
Mikel J. Hoffman, Esq.
Defendant's attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Mary Oleske, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 25, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


This claim arises from the injuries sustained by Joseph Berkowitz (hereinafter "claimant") due to the alleged medical malpractice at SUNY Stony Brook. Claimant alleges that the malpractice occurred between December 1, 2000 and November 27, 2002. Defendant asks this Court to dismiss the claim as untimely[1].

According to claimant's affidavit, he went to SUNY Stony Brook on December 1, 2000, in regard to cancer in his right leg and continued treatment with the defendant hospital through November 27, 2002.[2] However, the claim states that he went to the hospital on December 1, 2000, and that the defendant failed to diagnose his condition. The claim indicates that claimant continued treatment with the defendant for the symptoms he first presented on December 1, 2000. The claim alleges that claimant continued the course of treatment for his leg until November 27, 2002.

Defendant relies on the case of Goldsmith v Howmedica, 67 NY2d 120, in which the Court of Appeals stated that the general rule is that a malpractice action accrues when it first occurs. Defendant argues that the malpractice occurred on December 1, 2000, when Dr. Marsha Alger excised tissue from claimant's shin. At the latest, defendant argues that the cause of action would have accrued on February 27, 2001, when claimant had his last visit with Dr. Alger.

Court of Claims Act §10(3) states:
A claim to recover damages for injuries to property or for personal injuries caused by the negligence or unintentional tort of an officer or employee of the state while acting as such officer or employee, shall be filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after the accrual of such claim.

Thus, defendant argues that claimant should have served either the claim or a notice of intention by May 28, 2001, at the latest.

The requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Lurie v State of New York, 73 AD2d 1006, aff'd 52 NY2d 849). The purpose of these requirements is to give the State prompt notice of an occurrence and an opportunity to investigate the facts and prepare a defense.

In Goldsmith v Howmedica, supra, the Court of Appeals recognized two exceptions to the general rule of the time that a medical malpractice case accrues. The relevant exception to the instant matter is "in a case where the doctor continues to treat the plaintiff after the act of malpractice, the Statute of Limitations is tolled until after the plaintiff's last treatment for the same injury or illness (McDermott v Torre, 56 NY2d 399, 407; Borgia v City of New York, 12 NY2d 151)" (supra at 122).

In Hill v Manhattan West Med. Group-H.I.P., P.C., 242 AD2d 255, the court denied a partial summary judgment motion due to a question of fact as to continuous treatment. Specifically, the court stated that even though "defendants did not diagnose plaintiff's decedent's condition as cancer is not a basis to find that they were not treating him for it if his symptoms were such as to indicate its existence and they nevertheless failed to properly diagnose it" (supra at 255).

While the Court recognizes that the relief sought is not a summary judgment motion, the Court, nonetheless, finds a question of fact as to claimant's continued treatment at defendant's hospital through at least November 27, 2002. It is unknown when, if ever, claimant was properly diagnosed by the defendant and what treatment ensued. The Court has only claimant's uncontroverted testimony that his treatment continued through November 27, 2002. Therefore, the Court finds that claimant's course of treatment continued through November 27, 2002, making claimant's notice of intention timely.

Based upon the foregoing, defendant's motion to dismiss the claim for lack of jurisdiction is denied.

June 25, 2004
Hauppauge, New York

Judge of the Court of Claims

[1]The following papers have been read and considered on defendant's motion to dismiss: Notice of Motion dated February 12, 2004 and filed February 13, 2004; Affirmation in Support of Mary Oleske, Esq. with annexed Exhibits A-B dated February 12, 2004 and filed February 13, 2004; Claimant's Affidavit in Opposition sworn to March 8, 2004 and filed March 10, 2004; Attorney's Affirmation in Opposition of Mikel J. Hoffman, Esq. with annexed Exhibits A-B dated March 8, 2004 and filed March 10, 2004.
[2]Claimant's affidavit in opposition to the motion indicates that he continued treatment until July 9, 2003.