New York State Court of Claims

New York State Court of Claims

RIVERA v. THE STATE OF NEW YORK, #2006-030-533, Claim No. 111764, Motion Nos. M-71201, M-71299


Case Information

1 1.The caption has been amended to reflect the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
M-71201, M-71299
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
May 1, 2006
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1 to 6 were read and considered on Defendant’s Pre-Answer Motion to Dismiss, and on Claimant’s Motion to Strike Affirmative Defenses:
1,2 Notice of Motion [M-71201]; Affirmation in Support by Jeane L. Strickland Smith, Assistant Attorney General dated January 19, 2006, and attached exhibits

3,4 Notice of Motion [M-71299]; Affidavit by Adrian Rivera, Claimant, sworn to February 6, 2006

  1. Affirmation by Jeane L. Strickland Smith, Assistant Attorney General dated March 14, 2006, and attached exhibits
  1. Filed paper: Claim
Adrian Rivera alleges in claim number 111764 that Defendant’s agents failed to provide him with adequate and timely medical care while he was in the custody of the New York State Department of Correctional Services (hereafter DOCS) at various correctional facilities.

Specifically, Claimant indicates that he broke his wrist while incarcerated at Rikers Island[2] on December 16, 2003, and then waited twelve (12) days before medical staff there examined him and diagnosed his broken wrist. They did not treat him. “Subsequently, the wrist was operated on when I was under the care, custody of . . . [DOCS]. The problem . . . is the first surgeon should have never inplanted the rod and screw in claimant[’s] wrist which has caused claimant extreme pain.” [Claim No. 111764, ¶3]. He alleges that “while at Downstate, Sing Sing, Fishkill and Green Haven correctional facility, the claimant was subjected to corrective surgery . . . ”, and the last operation was performed on December 9, 2005 removing the rod and screw. [ibid. ¶¶4,5]. Claimant further alleges that he has suffered physical pain from December 16, 2003 to December 9, 2005. [ibid. ¶5]. While asserting that he was entitled to reasonable and timely medical care, Claimant indicates that the malpractice was that “the rod and screw should never have been inplanted in claimant[’s] wrist . . . ” [ibid. ¶¶ 7, 8].

A Notice of Intention to File a Claim was served upon the Attorney General’s Office by regular mail on January 5, 2005. [Affirmation in Support of Motion to Dismiss by Jeane L. Strickland Smith, Assistant Attorney General, dated January 19, 2006, ¶3, Exhibit A]. The Notice of Intention alleges the failure to properly treat Claimant’s broken wrist. [id.]. A second Notice of Intention to File a Claim - identical to the first - was properly served upon the Attorney General’s Office by certified mail, return receipt requested on January 18, 2005. [ibid. Exhibit B]. In terms of an asserted accrual date in the two documents, they recite: “In May 2004, upon being received at the Downstate Correctional Facility, Claimant was send to the Fishkill Correctional Facility for x-rays of his right wrist, the x-rays was (sic) sent back to the Downstate Correctional facility medical Department where it was discovered that Claimant had suffered broken bones in the right wrist and on September 27, 2004, Claimant was sent to an out-side Hospital for surgery.” [ibid, Exhibits A and B]. The Notices of Intention, dated December 21, 2004, then state that Claimant was sent for “more x-rays and was told that the bones in claimant’s right wrist was still broken and that Claimant would have to have another surgery.” [id.].

The claim itself was served upon the Attorney General’s Office on December 23, 2005 by certified mail, return receipt requested, and filed in the Office of the Chief Clerk of the Court of Claims on December 22, 2005. [ibid. Exhibit C].

The Defendant moves to dismiss the Claim based upon a failure to timely serve and file the Claim. Court of Claims Act §§10 and 11.

In turn, the Claimant moves to “strike” the Attorney General’s “Affirmative Defense”, and asks “the court to either disregard the 2 Notice of Intentions and accept the claim or disregard the claim and accept either one of the Notice of Intentions as a claim, as the facts are stated on the notice of intentions.” [Affidavit by Adrian Rivera, Claimant, ¶ 2]. As noted by the Assistant Attorney General, Defendant was never served with the motion papers, nor was there any opposition served with respect to the Defendant’s motion to dismiss. [Affirmation by Jeane L. Strickland Smith, Assistant Attorney General dated March 14, 2006, ¶ 4]. Although Claimant indicates he could not serve the Defendant because the copy machine was broken at the correctional facility, it appears that in the interim Claimant was released from custody. [ibid. ¶¶3, 5, Exhibits 2 and 3].

As argued by the Assistant Attorney General, the Claimant cannot avail himself of the continuous treatment doctrine, to further extend the time period within which his claim should have been served and filed by broadly asserting unspecified negligence “from December 16, 2003 to December 9, 2005” as averred in his claim, particularly because he does not allege any negligent action by medical personnel within ninety (90) days of the service and filing of the claim. The assertion that he had surgery on December 9, 2005 does not provide a more generous time frame, because - among other things - he does not claim that the surgery on that date was not performed properly or was otherwise not within the standards of reasonable medical care. Indeed, it is not clear if the surgery was performed by DOCS personnel.

Under the continuous treatment doctrine, the time in which to bring a malpractice action is stayed “when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint.” Borgia v City of New York, 12 NY2d 151,155 (1962). The underlying principles behind the application of the doctrine are two-fold: first, it is in the patient’s best interest to continue ongoing medical treatment and second, the initial medical practitioner is in the best position to identify and correct his own malpractice. See Nykorchuck v Henriques, 78 NY2d 255, 258-259 (1991); Toxey v State of New York, 279 AD2d 927, 928 (3d Dept 2001), lv denied 96 NY2d 711 (2001). Indeed, when a notice of intention is served - the “initiation of the legal process” - any continued relationship of trust between doctor and patient is severed. Toxey v State of New York, supra at 928-929.

Moreover, when the continuing treatment is provided by someone other than the allegedly negligent practitioner there must be an agency or other relevant relationship between the health care providers. Meath v Mishrick, 68 NY2d 992, 994 (1986); McDermott v Torre, 56 NY2d 399, 403 (1982). Common ownership of correctional facilities by the Defendant is insufficient to trigger the continuous treatment doctrine. Allende v New York City Health and Hospitals Corporation, 90 NY2d 333, 340 (1997).

Court of Claims Act §11(b) requires that a Notice of Intention “. . . state the time when and place where such claim arose, [and] the nature of same . . .” The purpose of the Notice of Intention is to put the Defendant State on notice of potential suit against it, so that it may investigate the claim and infer a theory of liability. It also acts to extend the period within which a Claim must be served and filed, provided it has been properly served and contains the required information. While it need not be scrutinized with the same attention as a pleading, it should nonetheless perform its notice function, as well as provide specific enough information to determine whether any subsequently served and filed Claim is timely filed.

It is unclear from the Notice of Intention what date of accrual is asserted. Assuming a date of accrual of September 27, 2004 - the date asserted in both Notices of Intention as the date surgery was performed - the Notice of Intention was not timely in the first instance because it was served more than ninety (90) days after accrual, and did not operate to preserve any subsequently filed claim relative to any alleged malpractice. If claimant intended the accrual date to be later - perhaps prospectively, again, it is not clear from the documents themselves - the Notice of Intention, even assuming it was timely, did not operate to preserve any claim of malpractice occurring after it was served.

In any event, the Court should not have to guess what was intended.

With respect to Claimant’s motion, first, since no Answer has been served, there are no affirmative defenses to strike. Second, the Notice of Intention served on January 18, 2005 was untimely based upon the only apparent date of accrual alleged, thus it cannot be considered as the equivalent of a claim. Court of Claims Act §10(8). If it can be interpreted as having been timely served, it nonetheless does not state a cause of action against the State of New York, because no acts or omissions are alleged. Finally, the Claim itself is inadequate to state a cause of action against the State of New York for any negligence purportedly occurring within ninety (90) days of service of the claim.

The statute provides “. . . [n]o judgment shall be granted in favor of any claimant unless such claimant shall have complied with the provisions of this section applicable to his claim . . .” [ Court of Claims Act §10], the provisions concerning service and filing have been strictly construed. See e.g. Welch v State of New York, 286 AD2d 496, 729 NYS2d 527 (2d Dept 2001); Conner v State of New York, 268 AD2d 706, 707 (3d Dept 2000).

The defense concerning the statute of limitations has 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).

Defendant’s motion to dismiss [M-71201] is hereby granted, Claimant’s motion is denied [M-71299], and Claim number 111764 is in all respects dismissed.

May 1, 2006
White Plains, New York

Judge of the Court of Claims

[2]. Rikers Island is a facility owned and operated by the New York City Department of Corrections. [Affirmation in Support of Motion to Dismiss, ¶¶ 2, 6]. As a court of limited jurisdiction, the Court of Claims does not have subject matter jurisdiction to hear any claims against the City of New York or its employees. Court of Claims Act §9.