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
". . . 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,
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.