Claimant moves this Court to reargue and/or renew the Court's Decision and
Order filed February 22, 2006, dismissing the claim. Claimant seeks leave to
reargue dismissal of his medical malpractice causes of action and renewal of his
argument regarding his third and fourth causes of action. Defendant opposes this
In July 2005, claimant, an inmate, filed an action alleging that personnel at
Clinton Correctional Facility (Clinton) discontinued certain medical treatments
for a two week period in January 2005, in retaliation for claimant filing a
grievance (first and second causes of action). Claimant suffers from hepatitis C
and was receiving a course of viral therapy. Viral therapy will only be
continued, however, if a patient's viral loads decline at certain specified
rates. Claimant alleges that as a result of his interruption in treatment,
claimant did not reach the desired levels and, therefore, his viral therapy was
discontinued. Claimant further alleges that he was not provided adequate winter
clothing to participate in outdoor recreation from June 2003 through May 2005
(third and fourth causes of action).
In support of his motion, claimant seeks leave to reargue that part of the
Court's Decision and Order regarding his medical malpractice causes of action.
He argues that the Court misapplied the doctrine of continuous treatment and,
therefore, the limitations period should be tolled and his claim for medical
malpractice deemed timely. Further, claimant seeks to renew his argument
concerning his claims regarding his lack of winter clothing. He argues that new
facts demonstrate that he requested clothing when he first arrived at Clinton.
It is well settled that to establish reargument is warranted, a claimant must
establish that "the court overlooked or misapprehended the facts and/or the
law" in arriving at its prior decision (Loris v S & W Realty Corp.,
16 AD3d 729, 730 [3d Dept 2005]). Next, a motion seeking leave to renew "shall
be based upon new facts not offered on the prior motion that would change the
prior determination...and...shall contain reasonable justification for the
failure to present such facts on the prior motion" (CPLR 2221[e](2)(3);
see Stocklas v Auto Solutions of Glenville, Inc, 9 AD3d 622, 625
[3d Dept 2004, lv appeal, dismissed in part, denied in part
4 NY3d 738, ).
The Court grants reargument as to claimant's medical malpractice causes of
action to clarify its prior decision, and adheres to its prior order to dismiss
these causes of action. The Court reiterates that a medical malpractice claim
accrues for purposes of the Court of Claims Act when the injury is suffered
(see Konigsberg v State of New York, 256 AD2d 982, 982-983 [3d
Dept 1998] and, thus, it must be brought within 90 days of this date (Court of
Claims Act § 10 ). Claimant's injury occurred when his treatment was
interrupted between January 14, 2005 and January 27, 2005. Ordinarily, claimant
would be required to file his claim raising these allegations by April 27, 2005.
Claimant argues, however, that since his treatment was continued on January 28,
2005 through April 2005, the doctrine of continuous treatment tolls the
The continuous treatment doctrine tolls the Statute of Limitations during a
patient's course of treatment with his or her physician (Young v New York
City Health & Hosps. Corp., 91 NY2d 291, 296 ; Casale v
Hena, 270 AD2d 680, 682 [3d Dept 2000]. 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 ). A continuing
diagnosis or misdiagnosis does not itself amount to continuous treatment
(see McDermott v Torre, 56 NY2d 399, 406 ). "Rather, the
continuous treatment doctrine requires the existence of a relationship of
continuing trust and confidence between the patient and physician" (Fox v
Glens Falls Hosp., 129 AD2d 955, 956 [3d Dept 1987]).
The claim and claimant's submissions fail to allege the requisite relationship
of continuing trust and confidence to invoke the continuing treatment doctrine.
Indeed, the submissions indicate the antithesis of a trusting relationship. The
claim recites that claimant had previously filed a grievance against the doctor
that was responsible for stopping claimant's treatment, and claimant complained
to the facility superintendent and the chief medical officer and commissioner
for the Department of Corrections, stating that the termination of treatment was
for non-medical reasons and for retaliatory and discriminatory animus. These
allegations are not demonstrative of a relationship of trust and confidence.
Thus, there is no basis to toll the limitations period and these causes of
action were properly dismissed.
With respect to claimant's request to renew, the Court denies this request.
Based on claimant's allegations, the Court determines that this cause of action
accrued during 2003, the first winter that he arrived at Clinton, and that this
cause of action is untimely inasmuch as he did not file his claim within 90 days
of this time period. The Court declined to view claimant's alleged failure to
receive winter clothing as a continuing wrong inasmuch as there was no
allegation that claimant requested clothing and was denied. Claimant now states
that he did make such request and argues that he did not previously bring this
fact to the Court's attention because he did not know that it was important.
Claimant also states that he attached proof of his request to the present moving
The Court does not deem claimant's proffered excuse as justifiable as it seems
disingenuous to argue that he did not know the importance of this allegation
when he was alleging a continuing wrong for failing to provide the warm
clothing. Moreover, even if the Court was persuaded by claimant's excuse, his
moving papers do not contain any documents supporting his statement that he made
a request upon his arrival at Clinton in 2003. Defendant also did not receive
such documents (Wagner Affirmation, paragraph 5). As such, renewal is denied.
Accordingly, claimant's motion M-71496 is granted in part and denied in part.
It is granted to the extent that the Court grants reargument as to the medical
malpractice causes of action and, upon reargument, the causes of action are
dismissed. The motion is denied as to renewal.