Notice of Motion, Affidavit in Support, with Exhibits 1,2
“Opposition to Motion to Renew”, with Exhibits 3
In a Decision and Order dated May 23, 2006, this Court granted the
to dismiss this claim,
based upon improper and untimely service. In the instant motion, which was
filed with the Clerk of the Court of Claims on April 6, 2007, claimant seeks
leave to renew that prior order which dismissed his claim.
As determined by the Decision and Order of May 23, 2006, claimant had served a
Notice of Intention to File a Claim upon the Attorney General on June 20, 2005,
by certified mail, return receipt requested. Claimant then served his claim
upon the Attorney General on January 17, 2006, by regular, first class mail. As
set forth in the papers submitted with this motion (see Item 3), claimant
re-served his claim upon the Attorney General on March 3, 2006, by certified
mail, return receipt requested (apparently in response to the State’s
motion to dismiss).
In this Court’s prior Decision and Order of May 23, 2006 which dismissed
the claim, although the Court made reference to claimant’s initial
improper service of the claim, but dismissal of the claim was based upon this
Court’s determination that claimant had failed to timely serve his Notice
of Intention to File a Claim within 90 days of accrual of his cause of action.
In that Decision and Order, this Court determined that claimant had alleged
three separate, but related, causes of action of medical malpractice occurring
between the dates of May 4, 2004 and December 2, 2004, at a time when claimant
was incarcerated at Mid-State Correctional Facility. In response to the motion
to dismiss, claimant contended that his time to serve the Notice of Intention
had been extended by the continuous treatment doctrine, recognized by CPLR
§ 214-a. This Court agreed with claimant’s contention that the
continuous treatment doctrine was applicable to the medical treatment received
by claimant from May 4, 2004 through December 2, 2004, as asserted by claimant.
However, after finding that the continuous treatment doctrine applied and that
the date of accrual for the allegations of medical malpractice was December 2,
2004, this Court nevertheless determined that claimant’s Notice of
Intention, served on June 20, 2005, was untimely, as it was not served within 90
days from the date of accrual of December 2, 2004, as required by Court of
Claims Act § 10(3). Therefore, claimant did not receive the benefit of the
extension of time for the service and filing of a claim provided by §
10(3), and claimant’s subsequent service of the claim on the Attorney
General was also untimely.
In the instant application, claimant contends that he continued to receive
medical treatment beyond the December 2, 2004 date as an inmate at Mid-State
Correctional Facility, and that this medical treatment continued up to the time
when he served his Notice of Intention on June 20, 2005. In support of his
contention, claimant has attached uncertified copies of his medical records from
Mid-State Correctional Facility, purporting to show this continuous treatment.
On a motion to renew, a party is required to show new facts to support the
motion or a justifiable excuse for the failure to have placed such facts before
the Court (Brooks v Inn at Saratoga Assn., 188 AD2d 921). Pursuant to
CPLR Rule 2221(e)(3), if a party seeking to renew a lost motion fails to provide
a reasonable justification as to why such facts were not presented to the Court,
the motion to renew should be denied (Turner v Turner, 305 AD2d 1087).
In this particular application, claimant has provided no explanation whatsoever
as to why he failed to include such contentions of continuous treatment (beyond
the December 2, 2004 date) when he responded to the State’s earlier motion
to dismiss. More importantly, claimant, by the mere production of his medical
records, has failed to satisfy the Court that the medical treatment received by
him at Mid-State Correctional Facility subsequent to December 2, 2004 was
directly related to the three separate allegations of medical malpractice set
forth in his claim. In other words, the fact that claimant received medical
treatment at the facility is insufficient, in and of itself, to establish a
continuous course of medical treatment for the specific allegations of medical
malpractice alleged in his claim.
Accordingly, based on the foregoing, the Court stands by its earlier
determination that claimant failed to serve his Notice of Intention within 90
days of accrual of his cause of action as required by Court of Claims Act §
10(3), rendering the subsequent service of his claim untimely as well. It is
ORDERED, that claimant’s motion to renew (Motion No. M-73189) is hereby