New York State Court of Claims

New York State Court of Claims

BRAMBLE v. THE STATE OF NEW YORK, #2007-028-563, Claim No. NONE, Motion No. M-73156


Motion to reargue granted and Court adheres to original determination. With exceptions not relevant here, a cause of action for medical malpractice accrues on the date of the last alleged wrongful act.

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: Michael T. Krenrich, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 16, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Movant’s motion to reargue his prior motion for permission to file an untimely claim:

1. Application of Reuben Bramble, pro se

2. Affirmation in Opposition of Michael T. Krenrich, AAG

Filed papers: Decision and Order, Bramble v the State of New York, #2006-028-592, Claim No. NONE, Motion No. M-71519, October 26, 2006, Sise, P.J.

Movant’s previous motion for permission to file a late claim was denied by this Court as untimely. In the proposed Claim, Movant alleged that while he was an inmate in the State prison system, he had been given improper medical treatment, specifically medication designed to combat a disease from which he did not suffer, from July 5, 1995 until December 2002, when he was released from State custody. His motion for permission to late file, which was commenced on April 5, 2006, was denied on the ground that it was untimely. Section 10(6) of the Court of Claims Act provides that a motion for permission to late file must be brought during the time period when "a like claim against a citizen" would not be barred by the applicable CPLR Article 2 statute of limitations, and under Article 2 of the CPLR, a claim for medical malpractice must be commenced within two and one-half years of the date of accrual (CPLR 214-a). In order to be timely, therefore, Movant would have had to commence his motion for permission to late file on or before June 2005.

A motion for reargument (CPLR 2221[d]), is addressed to the discretion of the Court and is designed to afford a party an opportunity to establish that the Court overlooked or misapprehended the relevant facts or misapplied a controlling principle of law (Schneider v Solowey, 141 AD2d 813 [2d Dept 1988]; Foley v Roche, 68 AD2d 558 [1st Dept 1979]). In the instant motion, Movant asserts that his cause of action did not accrue until March 25, 2003, the date on which he was informed by an outside hospital that he tested negative for the disease. Consequently, Movant argues, his motion to late file was timely. A motion to reargue is appropriate in this situation.

Movant’s argument that his motion was timely is based on two assumptions: 1) that the cause of action did not accrue until March 2003, and 2) that the motion was actually commenced in May 2005, not April 2006. Neither assumption is accurate.

As noted above, it was in March 2003 that Movant learned, after tests were performed at an outside hospital, that he tested negative for the disease for which he had received treatment from 1995 to 2002. Although he considers this date when he was “made aware” that the earlier treatment had been negligent, it is not the date on which the cause of action for medical malpractice accrued. “The limitations period for bringing a medical malpractice action has been held to run from the date that the last act of alleged malpractice was performed rather than from the date that the resulting injury was discovered” (Rodriguez v Manhattan Med. Group, 77 NY2d 217, 220 [1990]). In certain situations, the Legislature has established exceptions to this sometimes harsh rule, permitting the date of discovery to be used as the date of accrual where the medical malpractice resulted in a “foreign object” being left in the patient’s body (CPLR 214-a) or where injury was caused by exposure to Agent Orange during the Vietnam War (CPLR 214-b) or to certain other toxic substances (CPLR 214- c). “If the Legislature chooses not to apply date of discovery principles in other professional malpractice settings, this Court should not tread where the Legislature refuses to go (see CPLR 201)” (McCoy v Feinman, 99 NY2d 295, 301 n 2 [2002]). Movant’s cause of action, therefore, accrued in December 2002, which was the last time that he was given the allegedly improper medication by State officials.

From submissions annexed to the instant application for relief, it appears that Movant served a “Late Claim motion” on the Attorney General in May 2005. Movant also includes a letter from Assistant Attorney General Kathleen M. Arnold which, he contends, “confirm[s] her submission of original motion with proof of service to the court of claims for filing” in June 2005 (Bramble Application, p 2, Exhibit 4). In fact, the June 16, 2005 letter from AAG Arnold confirms that it was the State’s Affirmation in Opposition that was being filed on that date. The Court’s records confirm that Movant’s Notice of Motion in Motion No. M-71519 was filed with the Court on April 5, 2006.

Movant’s motion to reargue is GRANTED and, upon reconsideration, the Court adheres to its original decision.

July 16, 2007
Albany, New York

Judge of the Court of Claims