Filed papers: Claim.
In his filed claim, claimant seeks damages for personal injuries based upon
three separate but related alleged incidents of medical malpractice occurring
over a period of time from May 4, 2004 to December 2, 2004, when he was
incarcerated at Mid-State Correctional Facility. As established by the exhibits
submitted with defendant’s motion, claimant served a Notice of Intention
to File a Claim upon the Attorney General on June 20, 2005, by certified mail,
return receipt requested (see Exhibits C and D to Items 1,2). According to
defendant’s attorney, claimant then served his claim upon the Attorney
General on January 17, 2006, by regular, first class mail.
A claim alleging acts of negligence, such as medical malpractice, against the
State must be served on the Attorney General and filed with the Clerk of the
Court of Claims within 90 days of accrual, unless a Notice of Intention is
served upon the Attorney General within such 90 days (Court of Claims Act §
10). If a Notice of Intention is timely and properly served upon the
Attorney General, the claim must then be served and filed within two years from
the date of accrual. Furthermore, pursuant to Court of Claims Act § 11(a),
a claim or a Notice of Intention to File a Claim must be served upon the
Attorney General either personally or by certified mail, return receipt
In this particular matter, it is defendant’s contention that the claim
was neither timely nor properly served, and is therefore subject to dismissal.
In his response, claimant contends that the “continuous treatment”
doctrine, recognized by CPLR § 214-a, renders his claim timely. Claimant
further contends, without any supporting documentary proof, that he cured any
jurisdictional defect as to the manner of service by re-serving the Attorney
General with his claim by certified mail, return receipt requested, apparently
after he was served with this motion.
The continuous treatment doctrine provides that a limitations period will not
begin to run until the end of the course of treatment (McDermott v Torre,
56 NY2d 399, 405). For purposes of determining the date of accrual for this
medical malpractice action, claimant has satisfied this Court that the medical
care provided to claimant between May 4, 2004 and December 2, 2004 was part of a
continuous course of medical treatment. Claimant, however, has made no
allegations that he received any further medical treatment for his condition or
conditions after December 2, 2004. The Court, therefore, hereby finds and
determines that December 2, 2004 is the date of accrual for all of the separate
allegations of medical malpractice alleged in this claim.
Nevertheless, claimant’s Notice of Intention, which was received by the
Attorney General on June 20, 2005, clearly was not served within 90 days from
this date of accrual, as required by Court of Claims Act § 10(3). As a
result, claimant did not receive the benefit of the extension of time for the
service and filing of a claim as provided by § 10(3). Therefore, the
claim, which was served on the Attorney General on January 17, 2006, was not
accomplished within 90 days from the date of accrual, and is therefore untimely.
Defendant has attached a copy of the envelope in which this claim was mailed
(see Exhibit B to Items 1, 2) bearing postage in the amount of $1.35. This
amount is clearly insufficient to cover the cost of mailing by certified mail,
return receipt requested. Additionally, there are no markings on the envelope
to indicate that this claim was served by certified mail, return receipt
requested. The Court therefore finds and determines that this claim was served
by regular, first class mail, and not by certified mail, return receipt
requested, as required by statute.
The provisions of the Court of Claims Act relating to the time and manner of
service and filing are jurisdictional prerequisites to the maintenance of a
claim, and as such must be strictly construed (Finnerty v New York State
Thruway Auth., 75 NY2d 721; Greenspan Bros. v State of New York , 122
AD2d 249). The failure of claimant to either serve a notice of intention or
serve and file his claim within 90 days from the date of accrual renders this
claim untimely, requiring dismissal (Pizarro v State of New York, 19 AD3d
891; (Byrne v State of New York, 104 AD2d 782, lv denied, 64 NY2d
Based on the foregoing, it is
ORDERED, that Motion No. M-71386 is hereby GRANTED; and it is further
ORDERED, that Claim No. 111942 is hereby DISMISSED.