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
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
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
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
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 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