New York State Court of Claims

New York State Court of Claims

BANYAN v. THE STATE OF NEW YORK, #2006-009-055, Claim No. 110271, Motion Nos. M-70950, CM-71245


Claimant’s motion to amend his claim was denied, and defendant’s cross-motion to dismiss the claim based upon untimely service was granted.

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):
Claimant’s attorney:
Defendant’s attorney:
Attorney General
BY: Maureen A. MacPherson, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
September 25, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has brought a motion (M-70950) seeking permission to amend his claim. Defendant has responded with a cross-motion (CM-71245), not only opposing the relief sought by claimant, but also seeking an order dismissing the claim.

The following papers were considered by the Court in connection with these motions:
Notice of Motion, Affidavit in Support, Proposed Amended Claim 1,2,3

Notice of Cross-Motion, Affirmation, with Exhibits 4,5

Reply to Cross-Motion 6

In his claim, claimant seeks damages based upon allegations of medical malpractice. Specifically, claimant alleges that on September 28, 2004, claimant was diagnosed with a hernia in his stomach, which supposedly had been repaired by surgery performed on September 11, 2003. According to claimant, corrective surgery was then performed on November 15, 2004 to repair this hernia. Claimant apparently served both a claim and a notice of intention to file a claim on the defendant on December 17, 2004. This claim was filed with the Clerk of the Court of Claims on December 27, 2004.

In its cross-motion, defendant contends that claimant failed to serve either a claim or a notice of intention to file a claim upon the Attorney General within 90 days of accrual of his claim, as required by the Court of Claims Act.

Pursuant to Civil Practice Law and Rules § 214-a, an action for medical malpractice accrues at the time of the act, omission or failure complained of, unless there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure.

In this particular matter, claimant contends that his claim accrued on or about September 28, 2004, when it was confirmed that claimant had suffered another hernia. This medical malpractice action is, however, based upon the surgery to repair a hernia that was performed on September 11, 2003 and claimant’s cause of action accrued at that time, unless the continuous treatment doctrine applies to toll the applicable limitations period. There are no indications either in the claim, or in the papers submitted in connection with these motions, however, to indicate that claimant received any subsequent treatment or care related to this hernia operation until approximately one year later, when he again complained of stomach pain (as indicated in his claim). Claimant has not provided any information on which this Court could invoke the continuous treatment doctrine pertaining to the hernia operation of September 11, 2003. Accordingly, the Court must find that the date of September 11, 2003 is the date of accrual for this claim.

Pursuant to Court of Claims Act § 10(3), a claim premised upon negligence (including medical malpractice) must be served on the Attorney General and filed with the Court of Claims within 90 days of accrual. This time for service and filing of a claim, however, can be extended if a notice of intention to file a claim is properly served upon the Attorney General within such 90 days.

In this particular matter, defendant acknowledges that the claim was served upon the Attorney General on December 17, 2004[1]. Court records confirm that this claim was filed with the Clerk of the Court of Claims on December 27, 2004. Clearly, neither service nor filing of this claim occurred within 90 days of the accrual date of September 11, 2003.

The service and filing requirements of the Court of Claims Act are jurisdictional prerequisites to the institution and maintenance of a claim against the State and therefore must be strictly construed (Finnerty v New York State Thruway Auth., 75 NY2d 721; Byrne v State of New York, 104 AD2d 782, lv denied 64 NY2d 607). Since this claim was not served and filed within 90 days of accrual, this Court must find that it is jurisdictionally defective and must be dismissed.

Since the claim is jurisdictionally defective, and since a claim may not be amended to cure a jurisdictional defect (Grande v State of New York, 160 Misc 2d 383; Manshul Constr. Corp. v State Ins. Fund, 118 AD2d 983; Ferrer v State of New York, 172 Misc 2d 1), it would be an exercise in futility for this Court to consider claimant’s motion to amend his claim.

Accordingly, it is

ORDERED, that Motion No. M-70950 is hereby DENIED as moot; and it is further

ORDERED, that Cross-Motion No. CM-71245 is hereby GRANTED; and it is further

ORDERED, that Claim No. 110271 is hereby DISMISSED.

September 25, 2006
Syracuse, New York

Judge of the Court of Claims

[1]. Apparently a notice of intention to file a claim was also served upon the Attorney General on this same date.