New York State Court of Claims

New York State Court of Claims

DEMAILLE v. THE STATE OF NEW YORK, #2007-028-548, Claim No. 112117, Motion No. M-71593


Motion to dismiss as untimely inmate claim alleging medical malpractice and negligently causing claimant harm by requiring strenuous activity is granted in part and denied in part.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
BY: Jeane L. Strickland Smith, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 8, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Defendant’s motion for an order of dismissal:

1. Notice of Motion and Supporting Affirmation of Jeane L. Strickland Smith, AAG; and

2. Affidavit in Opposition (none received).

Filed papers: Claim

This action is based on allegations that Claimant received inadequate medical care while incarcerated at five different correctional facilities. The Claim was filed and served in March 2006, and, in lieu of answering, Defendant State of New York has moved for an order dismissing the Claim on the ground that it is untimely.

The Claim alleges that on September 11, 2002, at Suffolk County Correctional Center, Claimant was assaulted by a correction officer and suffered significant injuries, requiring treatment at an outside hospital. The events giving rise to this claim against the State of New York occurred between April 24, 2003 to April 4, 2005, when Claimant was in the custody of the Department of Correctional Services (DOCS). He states that in December 2003, he received an MRI scan and in February 2004, while housed at Fishkill Correctional Facility, he underwent a spinal laminectomy and bone fusion at Westchester Medical Center. Both before and after that operation, Claimant asserts, he suffered severe pain and discomfort in his back and legs but was denied effective medication, was not given prompt or adequate medical attention, and on a number of occasions was forced to perform manual labor and other physical tasks that exacerbated his condition. The Claim also alleges that when he was incarcerated at Fishkill Correctional Facility, he developed head pain, ear pressure and vertigo, conditions that were improperly diagnosed and inadequately treated through the rest of his incarceration. As noted above, he left DOCS custody on April 4, 2005.

On January 4, 2005, Claimant served on the Attorney General, by certified mail, return receipt requested, four separate Notices of Intention:
  1. Notice of Intention (Smith Affirmation, Exhibit 2): alleges inadequate medical treatment was provided to Claimant beginning in August 2003. The accompanying narrative references pressure and pain in both ears and vertigo that had been untreated or improperly treated for “well over (1) year as of this date.”. No specific correctional facility is mentioned.
  1. Notice of Intention (id. Exhibit 3): alleges inadequate medical treatment and recites July 19, 2004, Washington Correctional Facility, as the place of accrual. The accompanying narrative references an attack on him by other inmates, causing a serious eye injury. This attack, he alleged, occurred because he was known as a “vulnerable inmate.” because of his physical condition, and unable to properly defend himself. He states that he became aware of the seriousness of his injury in October 2004.
  1. Notice of Intention (id. Exhibit 4): relates to treatment Claimant received at Mt. McGregor Correctional Facility from October 5, 2004 to November 4, 2004. The accompanying narrative states that although his surgeon and physical therapist had told him to avoid lifting or other strenuous activity, he was “unreasonably” housed on the second floor and required to perform forced labor. He also alleges that he received ineffective medications during this time and was not provided with a prescribed back brace
  1. Notice of Intention (id. Exhibit 5): alleges inadequate medical care received at Greene Correctional Facility on November 29, 2004 and December 21 and 22, 2004. The accompanying narrative states that Claimant was required to carry heavy items and perform inappropriate work.

Defendant now moves to dismiss the Claim on the ground that all, or portions, of it were untimely at the point that the relevant Notice of Intention was served. With respect to the allegations of inadequate medical care, it is well-settled that an action based on allegations of medical malpractice accrues on the date of the alleged wrongful act or omission (Nykorchuck v Henriques, 78 NY2d 255, 258 [1991]). The continuous treatment doctrine, however, affords an exception to that general rule by providing that the statute of limitations will not begin to run until the end of the course of treatment, so long as said treatment is "related to the same original condition or complaint." (McDermott v Torre, 56 NY2d 399, 405 [1982], quoting Borgia v City of New York, 12 NY2d 151, 155 [1962]). The "continuous treatment" doctrine tolls the statute until the end of the course of continuous treatment (CPLR 214-a; Richardson v Orentreich, 64 NY2d 896 [1985]). In a prison setting, it is not necessary for inmates to have been seen by the same physicians or be treated at the same facility for continuous treatment exception to apply, for they have little to no control over which medical practitioners they see or their movement from one facility to another (Ogle v State of New York, 142 AD2d 37 [3d Dept 1988]; Kelly v State of New York, 110 AD2d 1062 [4th Dept 1985]; Howard v State of New York, 96 AD2d 656 [3d Dept 1983]).

The first-listed Notice of Intention provides adequate and timely notice of Claimant’s ear condition. It indicates that the anticipated claim arose within the State prison system, beginning in August 2003, and was continuing as of January 2005. Inasmuch as DOCS maintains inmates’ ambulatory medical records of inmates, it was in a position to fully investigate the potential claim. The notice, served in January 2005, was timely; the continuous treatment doctrine would apply to the allegations here and, since his incarceration did not end until April 4, 2005, he would not have been required to serve any notice until 90 days from that date. By serving the Notice of Intention two months earlier, Claimant effectively severed any continuing relationship of trust in the physician-patient relationship and thus ended any tolling of the statute of limitations at that point (see O'Connor v State of New York, 15 AD3d 827 [3d Dept 2005]; Toxey v State of New York, 279 AD2d 928 [3d Dept 2001]).

The Notice of Intention referencing July 19, 2004 and an eye injury caused when Claimant was assaulted by other inmates was not timely, as it was not served until January 2005. In any event, the Claim now filed with the Court and served on Defendant does not contain any allegations based on this incident.

The last two Notices of Intention, if considered together since they were served together, can reasonably be read as providing notice that Claimant intended to sue the State for a continuing pattern of providing inadequate medical treatment and also requiring him to perform activities that were too strenuous for his condition and harmful to his health. Although the latter cause of action would not sound in medical malpractice, and thus would not be subject to the continuous treatment doctrine, it does appear that the negligence involved would represent a continuing wrong, in which damages are not reasonably ascertainable until the wrongful actions or activity are stopped (Augat v State of New York, 244 AD2d 835 [3d Dept 1997], lv denied 91 NY2d 814 [1998]). Either of these causes of action would be limited to events occurring after October 5, 2004, the earliest date referenced in a Notice of Intention, and service of the Notice of Intention in January 2005 and service and filing of the Claim in March 2006 would therefore be timely.

Defendant’s motion is denied with respect to the causes of action alleging 1) providing inadequate or incorrect treatment of Claimant’s ear condition from August 2003 until his release from incarceration; 2) providing negligent medical treatment of injuries affecting his back and legs from October 5, 2004 until January 4, 2005, when the Notice of Intention was served; and 3) negligently requiring Claimant to perform strenuous work that damaged his health, from October 5, 2004, and otherwise granted.

May 8, 2007
Albany, New York

Judge of the Court of Claims