New York State Court of Claims

New York State Court of Claims

LEZAMA v. THE STATE OF NEW YORK, #2006-032-027, Claim No. N/A, Motion No. M-70841


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:
Adrian Lezama, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Michele M. Walls, Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
March 28, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


By Decision and Order filed on June 28, 2005, the Court dismissed claim 110450 for failure to comply with the Court of Claims Act. Claimant now moves for permission to file a late claim by treating his notice of intention served on the Attorney General in claim 110450 as a claim. Claimant confuses the mechanism provided in Court of Claims Act § 10 (6) for permission to file a late claim with the mechanism in Court of Claims Act § 10 (8) (a), which allows a timely served notice of intention to be treated as a claim. Under either provision, claimant's motion must be denied.

Initially, claimant's "notice of intent to bring a claim" alleges negligence and medical malpractice. Claimant withdraws that part of his claim alleging negligence. As such, the Court confines its analysis to the medical malpractice claim.

A claimant seeking either leave to file a late claim or leave to deem a notice of intention a claim, must establish that the limitations period had not expired on the alleged cause of action (Court of Claims Act § 10 [6], [8][a]). A claim for medical malpractice has a 2 ½ year limitations period (CPLR 214-a). Claimant injured himself and sought medical treatment on July 21, 2002, and admits that his claim accrued on this date (Reply Affidavit of Adrian Lezama sworn to November 14, 2005, ¶ 4). Thus, the limitations period for his claim expired in January 2005. Claimant seeks, however, to save his claim for medical malpractice by invoking the continuous treatment doctrine. The continuous treatment doctrine tolls the running of the Statute of Limitations in certain medical malpractice actions (CPLR 214-a). The doctrine requires an ongoing relationship of trust and confidence between the patient and physician (see Toxey v State of New York, 279 AD2d 927 [3d Dept 2001], lv denied 96 NY2d 711 [2001]). An initiation of legal process, however, "sever[s] any continuing relationship of trust in the physician-patient relationship and end[s] any 'continuous treatment tolling' at that point" (id, at 929). Here, claimant served a notice of intention upon defendant on October 10, 2002. While the service of such document extended the time for commencing a claim (Court of Claims Act § 10 [3]), it also terminated the toll of the accrual date afforded by the continuous treatment doctrine (see Toxey v State of New York, supra). Given that claimant did not move for his requested relief until more than 2 ½ years after October 21, 2002, the claim is time-barred. Therefore, neither late claim relief nor leave to deem the notice of intention a claim is available.

Accordingly, claimant's motion M-70841 is denied.

March 28, 2006
Albany, New York

Judge of the Court of Claims

Papers Considered:

1. Notice of Motion filed October 20, 2005;

2. Affidavit of Adrian Lezama sworn to October 14, 2005; unnumbered Exhibits annexed;

3. Affirmation of Michele M. Walls dated November 1, 2005;

4. Reply Affidavit of Adrian Lezama sworn to November 14, 2005.