BELL v. THE STATE OF NEW YORK, #2007-009-009, Claim No. 112564, Motion Nos.
M-72275, M-72378, CM-72633
Claimant’s motion (M-72275) seeking permission to amend his claim was
denied as unnecessary; claimant’s motion (M-72378) seeking an order
dismissing the affirmative defenses of the defendant was granted in part; and
defendant’s cross-motion (CM-72633) seeking an order dismissing the claim
based upon untimeliness was denied.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
NICHOLAS V. MIDEY JR.
DISHAWN BELL, Pro Se
HON. ANDREW M. CUOMO
Thomas M. Trace, Esq.
March 27, 2007
See also (multicaptioned
Claimant has brought a motion (M-72275) seeking permission to amend his claim.
Subsequent to the service and filing of this motion, claimant submitted a second
motion (M-72378) seeking an order dismissing each and every affirmative defense
asserted by the defendant in its verified answer. Defendant has responded with
a cross-motion (CM-72633) seeking an order dismissing the claim based upon
untimely service and filing of the claim. For purposes of judicial economy,
both motions and the cross-motion will be addressed herein.
The following papers were considered by the Court in connection with these
Motion to Amend Claim, Affidavit in Support, with Exhibits (M-72275) 1,2
Response to Motion, with Exhibits (M-72275) 3
Reply Affidavit (M-72275) 4
Notice of Motion, Affidavit in Support (M-72378) 5,6
Affirmation (in Opposition), with Exhibits (M-72378) 7
Reply Affidavit (M-72378) 8
Notice of Cross-Motion, Affirmation, with Exhibits (CM-72633) 9,10
Affidavit in Opposition (CM-72633) 11
In his claim, filed July 24, 2006, claimant seeks damages based upon the
alleged failure of the defendant to provide him with adequate and proper medical
care during the time when he was an inmate under the care and custody of
Department of Correctional Services. In his claim, claimant alleges that he
suffered an injury to his right knee during a basketball game at Mid-State
Correctional Facility on April 6, 2003. Eventually, on November 14, 2005,
claimant underwent surgery to this knee to repair a torn anterior cruciate
ligament (ACL). Claimant alleges that he continued to experience pain in his
knee post-surgery and that x-rays were supposedly ordered but not taken. During
this time, claimant apparently requested copies of his medical files, and upon
review of these files, now alleges that his injury was originally mis-diagnosed,
and proper medical treatment was not provided, from the time of his
original injury in April, 2003.
A notice of intention to file a claim was served upon the Attorney General on
February 27, 2006, without mention of any of the relevant dates as stated above.
A second notice of intention to file a claim was served upon the Attorney
General on June 22, 2006. Defendant acknowledges that the claim was served upon
the Attorney General on July 21, 2006.
CROSS-MOTION NO. CM-72633
The Court will first address the cross-motion brought by the defendant seeking
an order dismissing the claim. If granted, this cross-motion would be
dispositive of the claim, and would render moot the two motions brought by
Defendant contends that claimant did not timely serve and file his claim. It
is well established that failure to timely serve the Attorney General in strict
compliance with Court of Claims Act § 10(3) constitutes a jurisdictional
defect (see Finnerty v New York State Thruway Auth., 75 NY2d 721;
Dreger v New York State Thruway Auth., 177 AD2d 762, affd 81 NY2d
A claim premised upon negligence or malpractice must be served and filed within
90 days of accrual, unless within such time a claimant serves a notice of
intention to file a claim within such 90 days, thereby extending the time in
which the claim must be served and filed (Court of Claims Act § 10).
Furthermore, it is well-settled that a medical malpractice claim accrues on the
date of the alleged wrongful act or omission (Nykorchuck v Henriques, 78
In cases based upon allegations of medical malpractice, however, the continuous
treatment doctrine provides an exception to the general rule by providing that
the statute of limitations will not begin to run until the end of the course of
treatment, as long as such treatment is related to the original condition or
complaint (McDermott v Torre, 56 NY2d 399; Borgia v City of New
York, 12 NY2d 151). Although claimant makes no reference to the doctrine of
continuous treatment in his affidavit submitted in opposition to
defendant’s cross-motion, it is apparent to this Court that the doctrine
may be applicable in this matter. From the papers submitted with these motions,
as well as from examining the filed claim, it appears that claimant suffered an
injury to his right knee on April 6, 2003; that he received initial treatment
for his injury at that time; that he continued to experience pain in his knee
following this treatment; that eventually, on November 14, 2005, claimant
underwent surgery to repair a torn ACL in this knee; and that following surgery,
he continued to both experience pain and seek medical treatment from medical
staff at his medical facility.
The Court notes that the continuous treatment can be applied to situations, as
present here, where a prison inmate is treated (or necessary treatment omitted)
by physicians in a succession of different State facilities (Ogle v State of
New York, 142 AD2d 37).
Defendant contends, however, that upon service of his notice of intention on
February 27, 2006, claimant severed any possible toll for continuous treatment
(see Toxey v State of New York, 279 AD2d 927). In this notice of
intention, claimant did not mention any medical treatment, or lack thereof,
provided from April 6, 2003 to November 14, 2005, and these allegations were
only provided in claimant’s second notice of intention, served on June 22,
2006. It is defendant’s argument that if the continuous treatment toll
was severed on February 27, 2006, any claim or notice of intention benefitting
from the continuous treatment toll had to be served within 90 days of severance.
Since the second notice of intention was served more than 90 days from the date
of service of the first notice of intention, defendant argues that the second
notice of intention therefore did not preserve any cause of action for treatment
rendered prior to November 14, 2005.
Defendant, however, misconstrues Toxey
, and cases that have relied upon
its holding (see Jennings v State of New York
, , Ct Cl, September 15,
2004, Scuccimarra, J., Claim No. 109448, Motion No. M-68906, [UID No.
While it is true that service
of a notice of intention severs the continuous treatment toll in medical
malpractice actions, these cases specifically hold that the toll is severed with
regard to medical treatment provided after service of a notice of intention,
while at the same time preserving a cause of action for the treatment provided
prior to service of the notice of intention (and at the same time extending the
time for service and filing of a claim based upon such medical treatment).
In other words, if defendant contends that the first notice of intention
severed the continuous treatment toll, then service of that notice of intention
necessarily provided the State with adequate notice that claimant might serve
and file a claim based upon allegations of malpractice, even though certain
dates were not provided within that notice of intention. On the other hand, if
defendant contends that the first notice of intention did not provide it with
adequate notice of the potential claim, since relevant dates were not provided,
then service of such notice of intention did not operate to sever the continuous
treatment toll, with service of the second notice of intention on June 22, 2006.
In either event, service of either notice of intention extended the time for
service of the claim herein, and the service of the claim on July 21, 2006, and
the filing of such claim on July 24, 2006, is therefore timely. Based on the
allegations set forth in the claim, claimant is therefore entitled, at this
stage of the proceedings, to the benefit of the continuous treatment doctrine,
and therefore defendant’s cross-motion to dismiss this claim as untimely
Accordingly, it is therefore necessary to address the two motions brought by
In this motion, claimant seeks permission to amend his claim for the sole
purpose of adding a verification to this claim. Claimant concedes that the
claim filed on July 24, 2006 (and served upon the Attorney General on July 21,
2006) did not include a verification as required by Court of Claims Act
Pursuant to§ 11(b), a claim must be “verified in the same manner as
a complaint in an action in the supreme court.” Pursuant to CPLR 3022, if
a pleading must be verified, the recipient of an unverified pleading may elect
to treat it as a nullity, providing that the recipient returns the pleading with
due diligence, notifying the sender of the reason for rejection.
In Lepkowski v State of New York, 1 NY3d 201, the Court of Appeals
specifically addressed the relationship between the verification requirement of
§ 11(b) and CPLR 3022. The Court specifically held that “[s]ection
11(b) therefore embraces CPLR 3022's remedy for lapses in verification.”
(Lepkowski, supra at 210).
Following the Lepkowski decision, Court of Claims Act § 11(c) was
amended (L. 2005, Ch. 460, effective August 9, 2005), requiring that any
objection or defense based on a claimant’s failure to comply with
“the verification requirements as set forth in subdivision b of this
section and rule three thousand twenty-two of the civil practice law and
rules” is waived, unless raised, with particularity, in the answer or in a
pre-answer dismissal motion.
In this particular matter, defendant contends that by raising the defense of
lack of verification in its answer, it has preserved its defense, even though it
did not first follow the procedures set forth in CPLR 3022 for rejection of an
unverified pleading. Defendant therefore argues that claimant should not be
allowed to amend his claim, based on its affirmative defense, and that his
failure to verify constitutes a jurisdictional defect, which cannot be cured by
amendment (Manshul Constr. Corp. v State Ins. Fund, 118 AD2d 983;
Grande v State of New York, 160 Misc 2d 383).
However, in three separate claims brought by the same claimant, this Court, as
well as two of my esteemed colleagues on the Court of Claims, have uniformly
held that a defendant must first comply with the provisions of CPLR 3022 in
order to raise the issue of an absent or defective verification pursuant to
§ 11(c). (Scott v State of New York
, Ct Cl, June 15, 2006, Midey,
J., Claim No. 111369, Motion No. M-71358, [UID #2006-009-032]; Scott v State
of New York
, Ct Cl, May 18, 2006, Scuccimarra, J., Claim No. 111371, Motion
No. M-71230, [UID #2006-030-540]; Scott v State of New York
, Ct Cl,
February 27, 2006, Schweitzer, J., Claim No. 111370, Motion No. M-70867,
Accordingly, since defendant did not first reject the unverified claim which
was served on July 21, 2006, it has waived any defense pertaining to a
lack of verification. Since this defense has been waived, claimant’s
motion to amend his claim solely for the purpose of adding this verification is
unnecessary and is therefore denied as moot.
In this motion, claimant seeks an order dismissing the three affirmative
defenses asserted by the defendant in its verified answer.
In its first affirmative defense, defendant contends that this Court lacks
jurisdiction due to the untimeliness in service of the claim. This issue has
been addressed herein in the discussion pertaining to Cross-Motion No. CM-72633,
in which defendant sought an order dismissing the claim. Since
defendant’s cross-motion has been denied herein, this affirmative defense
is hereby stricken.
In its second affirmative defense, defendant has alleged that claimant may have
contributed, in whole or in part, to his injuries and/or damages by his own
A motion to dismiss a defense must be made on the grounds that a defense is not
stated or that it has no merit (CPLR 3211[b]). It is error for a court to
strike a defense in situations where material issues of fact remain unresolved
(Matter of Harrison v State of New York, 262 AD2d 833; Connelly v
Warner, 248 AD2d 941). When a claimant moves to dismiss a defense, the
claimant bears the burden of coming forward with sufficient proof to demonstrate
that the defense cannot be maintained, while the defendant is entitled to the
benefit of every reasonable construction of the pleading. If there is any doubt
as to the availability of a defense, it should not be dismissed (Pellegrino v
Millard Fillmore Hosp., 140 AD2d 954).
Since this claim is based upon allegations of inadequate or improper medical
treatment occurring over a period of time, claimant’s own actions during
this period of time may be called into question, as to whether such actions may
have contributed to his injuries or damages. This defense, therefore, has been
properly asserted by defendant.
Claimant is advised, however, that this defense is merely an assertion alleged
by the defendant, for which the defendant retains its burden of proof.
Defendant, however, must be provided with the opportunity to develop its defense
that claimant may have contributed to his injuries.
In its third affirmative defense, defendant alleges that the claim is
jurisdictionally defective since it is unverified. This defense has been
previously addressed herein in the Court’s determination of Motion No.
M-72275, in which claimant sought permission to amend his claim and supply the
omitted verification. Since this Court has determined herein that defendant
failed to preserve this defense, since it did not first reject the unverified
claim, this affirmative defense has no merit and is hereby stricken.
Therefore, based upon the foregoing, it is
ORDERED, that Motion No. M-72275, in which claimant seeks to amend his claim,
is hereby DENIED as unnecessary; and it is further
ORDERED, that Motion No. M-72378 is hereby GRANTED, in part, and the first
affirmative defense and third affirmative defense as set forth in
defendant’s verified answer are both hereby stricken; and it is
ORDERED, that Cross-Motion No. CM-72633, in which defendant seeks an order
dismissing the claim as jurisdictionally defective due to untimeliness, is
March 27, 2007
HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims
. Judge Schweitzer’s decision has been
reported as 11 Misc 3d 1079[A].