New York State Court of Claims

New York State Court of Claims

JN-CHARLES v. THE STATE OF NEW YORK, #2007-036-232, Claim No. 111717, Motion No. M-73539


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:
HARRIS & MIRANDA, LLPBy: Cheryl A. Harris, Esq.
Defendant’s attorney:
By: Marcie K. Glasser, Esq. Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 17, 2007
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is claimants’ motion for an order, pursuant to CPLR § 3211(b) striking the affirmative defenses 3, 7 8 and 13 of defendant’s answer, and also for an order deeming the claim to have been timely filed or, in the alternative, granting claimants permission to file a late claim.[1] Defendant, in its opposition, withdraws affirmative defenses 7, 8, 9 and 10, but argues that its third affirmative defense that no notice of intention ever was served and that the claim was not timely filed within ninety (90) days of accrual requires that the claim be dismissed; and that its thirteenth affirmative defense, while not jurisdictional, should not be dismissed because the claim does not comply with § 206.6 (b) of the Uniform Rules for the Court of Claims. The claim alleges, among other things, negligence and medical malpractice pertaining to the radiation therapy treatment that claimant Alexandra Jn-Charles received at SUNY Downstate Medical Center after she underwent a mastectomy. The radiation therapy itself began on or about April 19, 2005 and continued through May 25, 2005 and consisted of approximately 27 sessions of radiation. On June 8, 2005, Mrs. Jn-Charles was asked to attend a meeting at Downstate with the Chief Medical Officer, two treating physicians and an attorney representing Downstate at which time she was informed she had received an overdose of three times the prescribed amount of radiation at each of her 27 sessions because a treatment device called a “wedge” had not been programmed as part of her therapy. Thereafter, on June 17, 2005, she received a letter from the Chief Medical Officer which memorialized what was discussed at the June 8 meeting and which essentially confirmed that this is what happened. At that time, Mrs. Jn-Charles was advised of the additional treatments she would have to undergo in order to address the damage that had been done. This treatment took place at Brookdale University Hospital Center while Mrs. Jn-Charles continued to be seen at Downstate on a weekly basis for follow-up and monitoring of her progress. In November 2005, she was again admitted to Downstate where surgery was performed in an effort to repair her chest wall and a chest wound. She continued to receive treatment and additional surgery through September 25, 2006.

Claimants’ prior counsel filed the claim on December 8, 2005, six months after Mrs. Jn-Charles was first informed she had received overdoses of radiation. Claimants argue here that this filing was timely in that Mrs. Jn-Charles was still being treated at Downstate for the injuries caused by the radiation overdose at the time the claim was filed, and that the 90-day requirement within which to file a claim was tolled by virtue of the continuous treatment doctrine. Defendant counters that, at this juncture, for the court to strike the third affirmative defense alleging the untimely filing on this basis would be premature because claimants bear the burden of proving applicability of the continuous treatment doctrine, and numerous questions of fact need to be explored during discovery before such a determination may be made. As one example, defendant points to the fact that Mrs. Jn-Charles’ treatment for the condition stemming from the radiation overdose was performed at institutions other than Downstate and that there is a question whether Mrs. Jn-Charles thus intended uninterrupted reliance on Downstate’s oversight.

Although claimants may be able to rely on the continuous treatment doctrine in order to sustain the timeliness of the claim filed, given the time and effort that would be required by both sides in order to pin down all the facts pertaining to this issue and the uncertainty its ultimate resolution would place on the court’s jurisdiction to hear the substantive issues of this case, it appears to be an unnecessary and costly distraction for all concerned. In the interest of judicial economy, the court instead treats only with that portion of claimants’ motion which seeks permission to file a late claim.

Court of Claims Act § 10(6) grants the court the discretion to allow the filing of a late claim upon consideration of certain factors, including whether claimants’ delay in proceeding against the State is excusable, whether the State had timely notice of and the opportunity to investigate the pertinent allegations, whether the State would suffer substantial prejudice from an order allowing late filing, whether the proposed claim appears meritorious and whether claimant has an alternate remedy.

The claim appears to be meritorious. One need only read the letter from Downstate’s Chief Medical Officer to Mrs. Jn-Charles dated June 15, 2005, which essentially admits to what happened, in order to reach this conclusion. The letter also demonstrates that the State would not suffer substantial prejudice from an order allowing the late filing. Downstate clearly had notice of the events giving rise to the claim and the opportunity to gather whatever facts were necessary for an investigation of its pertinent allegations for when they were made six months later while she still was undergoing treatment. Given that Mrs. Jn-Charles was being treated with pain medication, hyperbaric oxygen, and being made to endure CT and bone scans for more than a year following the time she was first told of the radiation overdose, the court finds that she has more than ample excuse for the delay in filing the claim beyond the 90-day period.

Finally, defendant’s argument that claimants have an alternative remedy by proceeding against the individual physicians in Supreme Court is not compelling. The court’s review of the papers submitted on this motion reveals that Mrs. Jn-Charles was treated by a health care team working under the auspices and direction of Downstate. The only venue where the hospital and its staff may be made to answer for what allegedly transpired is the Court of Claims.

Accordingly, claimants’ motion in the alternative for permission to file a late claim is granted on the following conditions. Again for purposes of judicial economy (to obviate the time required for the filing and service of a new claim, the payment of another filing fee and procurement of a new claim number), the existing Claim No. 111717, which previously was served and filed on December 8, 2005 is hereby deemed timely filed[2] (Jomarron v State of New York, 23 AD3d 527); within twenty (20) days of the filing of this Decision and Order, claimants shall file and serve an amended claim in the form and substance as attached to their motion papers, except that the amended claim also shall contain the schedule required by § 206.6 (b) of the Uniform Rules for the Court of Claims detailing each item of damage claimed and the amount of such item to the extent this information is currently available to claimants, such schedule to be supplemented by further amendment of the claim to account for treatment rendered to Mrs. Jn-Charles subsequent to September 2006, such further amendment to be made at such later time as claimants receive additional treatment records from Downstate and from other physicians who treated Mrs. Jn-Charles; defendant shall serve an answer to the amended claim which will be filed following entry of this Decision and Order, within forty (40) days of the filing and service of the amended claim, which answer shall not contain the substantive allegations of affirmative defenses 7, 8, 9 and 10 of the original answer which were withdrawn by the defendant in its opposition papers on this motion. After issue is joined, counsel for the parties shall jointly call Chambers to schedule a Preliminary Conference that will establish a discovery schedule and address related matters.

September 17, 2007
New York, New York

Judge of the Court of Claims

[1].The court considered the following papers on this motion: claimants’ notice of motion and supporting affirmation and exhibits, dated May 11, 2007, defendant’s affirmation in opposition dated May 22, 2007, and claimants’ reply affirmation and exhibits dated June 22, 2007.
[2].The defendant has not moved to dismiss the claim.