This is a claim for injuries to Michael Powers (hereinafter
“claimant”) for the alleged medical malpractice of defendant’s
employees at the State University of New York Hospital at Stony Brook, Stony
Brook, New York. The date of occurrence of the alleged malpractice is the issue
of the motion before the Court.
Defendant moves to dismiss the claim based upon this Court’s lack of
jurisdiction because neither the notice of intention nor the claim were served
in a timely manner
The notice of intention and the claim indicate that the claim arose on December
20, 2001 (defendant’s Exhibits A and B). The notice of intention was
served upon the Attorney General’s office on October 23, 2002. The claim
was served upon the Attorney General’s office on November 21, 2002.
Defendant argues the notice of intention and claim are untimely because they
were served well beyond the ninety (90) days from the date of accrual (Court of
Claims Act §10).
In opposition, claimant argues that the notice of intention and the claim were
both timely because claimant was undergoing a continuous course of treatment by
the doctor that performed claimant’s surgery.
The requirements of the Court of Claims Act are jurisdictional in nature and
must be strictly construed (Lurie v State of New York, 73 AD2d 1006,
aff’d 52 NY2d 849). The purpose of these requirements is to give
the State prompt notice of an occurrence and an opportunity to investigate the
facts and prepare a defense. Lepkowski v State of New York, 1 NY3d 201,
207, noted that the Court of Claims Act “places five specific substantive
conditions upon the State’s waiver of sovereign immunity by requiring the
claim to specify (1) ‘the nature of [the claim]’; (2) ‘the
time when’ it arose; (3) the ‘place where’ it arose; (4)
‘the items of damage or injuries claimed to have been sustained; and (5)
‘the total sum claimed’.”
According to the claim and the notice of intention, claimant clearly states (in
identical language) that the claim arose on December 20, 2001. Claimant
makes no reference to a continuing course of treatment in either the notice of
intention or the claim. The Court also notes that in each of the five bills of
particulars served upon defendant, claimant never claims a continuing course of
Based on the foregoing, the Court has no alternative but to conclude that
claimant served his notice of intention and filed his claim beyond the statutory
dates set forth in Court of Claims Act §10(3). Claimant is unable to rely
on the continuing course of treatment theory because he failed to plead it in
the notice of intention or the claim.
The Court grants defendant’s motion to dismiss the claim. The Clerk of
the Court is directed to close the file.
.The following papers have been read and
considered on defendant’s motion: Notice of Motion dated August 22, 2006
and filed August 24, 2006; Affirmation in Support of Motion to Dismiss of Daniel
Chu, Esq. with annexed Exhibits A-C dated August 22, 2006 and filed August 24,
2006; Affirmation of Richard Frank, Esq. with annexed Exhibits A-B dated August
30, 2006 and filed September 1, 2006; Reply Affirmation in Support of Motion to
Dismiss of Daniel Chu, Esq. with annexed Exhibits A-F dated September 8, 2006
and filed September 12, 2006.