New York State Court of Claims

New York State Court of Claims

KADRY v. THE STATE OF NEW YORK, #2005-030-503, Claim No. 109883, Motion No. M-69384


Synopsis



Case Information

UID:
2005-030-503
Claimant(s):
MOHAMED KADRY
Claimant short name:
KADRY
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109883
Motion number(s):
M-69384
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
MOHAMED KADRY, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: MARY B. KAVANEY, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
January 28, 2005
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1 to 5 were read and considered on Defendant's motion


to dismiss:

1,2 Notice of Motion; Affirmation by Mary B. Kavaney, Assistant Attorney General and attached exhibits

3,4 Notice of Cross-Motion[1]; Opposition to Respondent's Motion (sic) by Mohamed Kadry, Claimant

  1. Filed Papers: Claim
Mohamed Kadry, the Claimant herein, alleges in Claim Number 109883 that Defendant's agents negligently 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 Downstate Correctional Facility (Downstate) and Coxsackie Correctional Facility (Coxsackie). Specifically, he states that he was improperly given medication to treat hepatitis - when he actually suffered from diabetes - commencing on August 7, 2003 until an unspecified date, and developed vocal chord paralysis and removal of his gallbladder in September, 2003 as a result. He alleges that his claim is timely, because he served a Notice of Intention to file a claim upon the Office of the Attorney General on December 22, 2003, and the Claim itself was served on September 22, 2004 - within one (1) year of its accrual - and was filed in the Office of the Chief Clerk of the Court of Claims on the same date.

In the papers submitted in opposition to Defendant's motion, Claimant indicates that he

". . . was released from St. Agnes Hospital September 30, 2003 to Correctional Facility Hospital until November 12, 2003. Copies of The Notice of Intention was filed in a timely fashion on December 22, 2003." [Opposition to Motion, ¶5].

In her Affirmation in support of Defendant's motion to dismiss, the Assistant Attorney General confirms that her office received Mr. Kadry's Claim on September 22, 2004 and received a Notice of Intention on December 22, 2003. She then states: "The claimant gives no reasons for not filing a notice of intent or a claim within the 90-day period...While courts have historically allowed a continuing course of treatment to toll the statute of limitations, it does not appear that the claimant is alleging any malpractice after September 22, 2003, thus making his claim approximately one month late." [Affirmation, ¶¶ 4 and 5].

After reading the Affirmation by the Assistant Attorney General, the Court is at a loss as to how the claim was served one month late as asserted. The Assistant Attorney General has attached copies of something entitled "Notice of Intention to File a Claim", containing what appear to be three (3) different, dated, internal routing stamps presumably placed by the Attorney General's Office indicating "received" December 22, 2003; "received" July 20, 2004 and "returned" August 9, 2004; and "received" August 18, 2004. [Exhibit 1]. Included in that exhibit is a document entitled "verification" by Mohamed Kadry dated December 26, 2003 indicating that his Notice of Intention was returned as unverified by the Attorney General's Office on December 22, 2003. [ibid.]. A copy of the Claim itself is attached as Exhibit 2. Significantly, no explanations of these exhibits are offered by Defendant. Although it is interesting that there is reference to the Defendant perhaps having returned the Notice of Intention served upon it by Claimant as an unverified pleading [See Civil Practice Law and Rules §3022; Lepkowski v State of New York, 1 NY3d 201 (2003)], without some affirmative showing by movant it is not persuasive in terms of allowing the Court to dismiss what appears to be, by this Court's calculations, a timely served and filed Claim.

The defense concerning the statute of limitations has not been raised with sufficient particularity in this 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).

Accordingly, Defendant's motion (M-69384) to dismiss based upon a failure to serve and file the claim within the statute of limitations period, is hereby denied in its entirety.

January 28, 2005
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1] No cross-motion was scheduled because substantively the papers do not ask for any relief other than denial of the Defendant's motion.