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,
. 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
ORDERED, that Cross-Motion No. CM-71245 is hereby GRANTED; and it is
ORDERED, that Claim No. 110271 is hereby DISMISSED.