New York State Court of Claims

New York State Court of Claims

MCDONALD v. STATE OF NEW YORK, #2006-039-003, Claim No. 108888, Motion No. M-71528


Synopsis



Case Information

UID:
2006-039-003
Claimant(s):
PETER MCDONALD
Claimant short name:
MCDONALD
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108888
Motion number(s):
M-71528
Cross-motion number(s):

Judge:
JAMES H. FERREIRA
Claimant’s attorney:
Alan M. Simon, Esq.
Defendant’s attorney:
Hon. Eliot Spitzer
Attorney General of the State of New York
By: Paul F. CaginoAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 1, 2006
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant seeks dismissal of this claim pursuant to CPLR § 3211 and Court of Claims Act § 10 and § 11 on the ground that claimant failed to commence this action in a timely manner. Attached as an exhibit to defendant’s motion is, among other things, a copy of a notice of intention to file claim, verified on May 12, 2003 and marked as received by defendant on May 23, 2003. The claim was subsequently filed with the Clerk of the Court on February 9, 2004. Issue was joined during March 2004 when defendant asserted, as one of several defenses, that the Court lacks jurisdiction due to the untimeliness of the claim “in that neither the claim nor a notice of intention was served within ninety (90) days after the accrual of the claim.” By Decision and Order (Hard, J.) filed September 27, 2005, the Court denied claimant’s motion for leave to serve and file a late claim. The Court now grants defendant’s motion to dismiss the claim. Claimant seeks to recover damages as a result of the alleged medical malpractice by the State while performing surgery to his shoulder on February 21, 2003. Such a claim must “be filed and served upon the attorney general within ninety days after the accrual of [the] claim, unless . . . within such time” a notice of intention to file a claim is served upon the attorney general, then the claim must “be filed and served upon the attorney general within two years after the accrual of [the] claim” (Court of Claims Act § 10 [3]; see Ivy v State of New York, 27 AD3d 1190, 1191 [2006]). Notably, claimant does not dispute that the notice of intention to file a claim was served upon the attorney general on May 23, 2003. Claimant does argue, however, that he did not discover problems associated with his surgery “until sometime after February 21, 2003 and at least thirty (30) days thereafter when [he] was undergoing aftercare.”

Generally, an action for medical malpractice “commences running when the alleged negligent act or omission occurs” (Labshere v Petroski, 32 AD3d 645, 646 [2006]). A recognized exception to this general rule is the continuous treatment doctrine “under which the time 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” ’ ” (id., quoting McDermott v Torre, 56 NY2d 399, 405 [1982]). “To invoke the doctrine, a plaintiff must establish a continuous course of treatment with a particular health care provider with respect to the condition that gives rise to the lawsuit” (Rudolph v Jerry Lynn, D.D.S., P.C., 16 AD3d 261, 262 [2005]). “[N]either the mere ‘continuing relation between physician and patient’ nor ‘the continuing nature of a diagnosis’ is sufficient to satisfy the requirements of the doctrine” (Nykorchuck v Henriques, 78 NY2d 255, 259 [1991], quoting McDermott v Torre, 56 NY2d at 405, 406). Based upon the foregoing principles, the Court finds that claimant’s self-serving statements, without more, regarding his discovery of the alleged malpractice while undergoing aftercare is insufficient to meet his burden to establish a continuous course of treatment. Accordingly, the Court further finds that the claim accrued on the date of claimant’s surgery, or February 21, 2003.

Since claimant failed to timely serve the notice of intention to file a claim within 90 days from the accrual of the claim, albeit by one day, his time to file and serve the claim was not extended (see Court of Claims Act § 10 [3]). Accordingly, the claim, which was filed with the Clerk of the Court during February 2004, and which was ostensibly served upon the attorney general during this same time, is purportedly untimely as well. The foregoing circumstances, considered together with the Court’s (Hard, J.) denial of claimant’s motion for leave to serve and file a late claim, necessitate the dismissal of the claim.

For the reasons discussed above, the Court hereby grants defendant’s motion to dismiss the claim.

Accordingly, it is ORDERED that Motion No. M-71528 is hereby granted and Claim No.

108888 is dismissed.




December 1, 2006
Albany, New York

HON. JAMES H. FERREIRA
Judge of the Court of Claims



Papers Considered:

  1. Notice of Motion to Dismiss filed April 5, 2006;
  2. Affidavit in Support of Motion to Dismiss sworn to on April 5, 2006, with exhibit;
  3. Affidavit in Opposition to Motion to Dismiss sworn to on August 15, 2006; and
  4. Correspondence from Paul F. Cagino, AAG, dated June 21, 2006.