New York State Court of Claims

New York State Court of Claims

SPEED v. THE STATE OF NEW YORK, #2006-009-029, Claim No. 111942, Motion No. M-71386


Synopsis


Defendant’s motion to dismiss the claim based upon improper and untimely service was granted.

Case Information

UID:
2006-009-029
Claimant(s):
DELVIN SPEED
Claimant short name:
SPEED
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111942
Motion number(s):
M-71386
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
DELVIN SPEED, Pro Se
Defendant’s attorney:
HON. ELIOT SPITZER
Attorney General
BY: Thomas M. Trace, Esq.,
Senior AttorneyOf Counsel.
Third-party defendant’s attorney:

Signature date:
May 23, 2006
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant has brought this motion seeking an order dismissing the claim based upon improper and untimely service of the claim.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation in Support, with Exhibits 1,2


“Reply to Motion to Dismiss Claim” 3

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[3]). 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 requested.

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.[1]

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 607).

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.


May 23, 2006
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims




[1]. Even if the Court accepts claimant’s unsupported allegation set forth in his response to this motion (Item 3) that he re-served his claim upon the Attorney General by certified mail, return receipt requested, such service cannot cure the fatal jurisdictional defect that this claim was not timely served.