New York State Court of Claims

New York State Court of Claims

SILVA v. STATE OF NEW YORK, #2007-037-002, Claim No. 110935, Motion Nos. M-72579, CM-72674


Synopsis


Defendant’s cross-motion for summary judgment dismissing the claim is denied as the date of service of the notice of intention to file a claim is deemed to be the accrual date of this medical malpractice action and the claim was filed and served within two years of that date. Claimant’s motion for leave to late file a claim is denied as moot.

Case Information

UID:
2007-037-002
Claimant(s):
WILLIAM SILVA, 01-A-2233
1 1.The caption has been amended sua sponte to reflect that the only proper Defendant is the State of New York.
Claimant short name:
SILVA
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended sua sponte to reflect that the only proper Defendant is the State of New York.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110935
Motion number(s):
M-72579
Cross-motion number(s):
CM-72674
Judge:
JEREMIAH J. MORIARTY III
Claimant’s attorney:
William Silva, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo
New York State Attorney General
By: Paul Volcy, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 23, 2007
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following were read and considered with respect to pro se Claimant’s motion for

permission to late file a claim (M-72579), and Defendant’s cross-motion for summary judgment dismissing claim no. 110935 (CM-72674):
1. Claimant’s notice of motion and supporting affidavit of pro se Claimant sworn to

September 8, 2006, with attached Exhibits;

2. Defendant’s notice of cross-motion and affirmation of Assistant Attorney General

Paul Volcy dated December 14, 2006, in support of Defendant’s cross-motion to dismiss and in opposition to Claimant’s motion to late file a claim, with attached Exhibits A- F;

3. Affidavit of pro se Claimant sworn to December 22, 2006, in opposition to

Defendant’s cross-motion to dismiss and in further support of Claimant’s motion to late file a claim.


Filed papers: Claim filed May 25, 2005; Answer filed July 7, 2005.

Pro se Claimant seeks permission to late file a medical malpractice claim pursuant to §10 (6) of the Court of Claims Act. The underlying malpractice cause of action arises out of an incident that occurred on March 3, 2003, at Collins Correctional Facility (Collins) where Claimant was incarcerated, when the Claimant allegedly injured his left foot while playing basketball. Claimant reported to the facility infirmary the following day and his foot was wrapped with an ace bandage. On March 5, 2003, Claimant was issued a cane and x-rays were taken. According to the x-ray report, Claimant sustained an acute Jones fracture to the fifth metatarsal. On March 18, 2003, Claimant was advised of the fracture, his left foot was placed in a splint, and he was issued crutches (see Claimant’s Ambulatory Health Records attached to Defendant’s cross-motion papers as part of Exhibit B).

Procedurally, Claimant served Defendant by certified mail, return receipt requested, with a notice of intention to file a claim dated May 30, 2003, which was received by the Attorney General’s office on June 5, 2003 (see Defendant’s Exhibit A). Claimant generally alleges in his notice of intention that Defendant’s medical department negligently failed to advise him of the Jones fracture and failed to appropriately treat the fracture. Claim no. 110935 was filed and served on the Attorney General’s Office by certified mail, return receipt requested, on May 25, 2005.

Defendant opposes Claimant’s motion for permission to late file a claim and cross-moves for summary judgment dismissing claim no. 110935. Because a determination of Defendant’s cross-motion could obviate the need to decide Claimant’s late claim application, the Court will address Defendant’s cross-motion first.

Defendant’s Cross-Motion (CM-72674)

Defendant alleges that claim no. 110935 should be dismissed as it was untimely filed and served upon the Attorney General. Pursuant to § 10 (3) of the Court of Claims Act, a negligence claim must be filed and served upon the Attorney General within 90 days of accrual unless the Claimant serves upon the Attorney General within this same 90-day period a notice of intention to file a claim, in which event the claim may be filed and served within two years of the accrual of the claim. Defendant admits that Claimant timely served a notice of intention to file a claim (Defendant’s Exhibit A) upon the Attorney General which effectively extended Claimant’s time to file and serve his claim to within two years of accrual. Defendant argues, however, that Claimant’s notice of intention sets forth incident dates of March 3, 2003 to March 18, 2003, and that the filing and service of the claim on May 25, 2005, was untimely as both the filing and service occurred more than two years after the latest possible accrual date set forth in the notice of intention.

Initially, this Court must determine the accrual date of this claim as it is the accrual date that will determine if claim no. 110935 was timely filed and served. In the claim, Claimant alleges that his claim accrued on March 6, 2003, the date on which the x-ray report indicating the existence of the Jones fracture was allegedly faxed from Brooks Memorial Hospital, where the x-ray was read, to Collins (see ¶¶ 6 and 24 of the claim annexed as Defendant’s Exhibit C).[2] In his present affidavit submitted in support of his application for leave to late file a claim, he alleges that his claim occurred between March 6, 2003 and March 17, 2003, the day before his left foot was placed in a half cast splint (see Ambulatory Health Records annexed to Claimant’s moving papers as Exhibits A through C). Claimant further alleges that he was still suffering occasional pain in his left foot in May of 2005 when his claim was filed and served (see ¶ 22 of the claim), and that he had received treatment for his foot up to August 19, 2003 (see page 7 of Claimant’s Bill of Particulars annexed to Defendant’s motion papers as Exhibit F). Indeed, Claimant’s Ambulatory Health Records (Claimant’s Exhibits A through Z) indicate that Claimant was complaining of pain in his left foot, undergoing further x-rays, and was being seen by an orthopedic specialist for further consultation through June of 2003.

In opposing Claimant’s motion for leave to late file a claim, Defendant alleges that the claim seems to be one for medical malpractice. Pursuant to CPLR § 214-a, a medical malpractice claim accrues on the date of the alleged “act, omission or failure complained of or last treatment where there is continuous treatment for the same illness, injury or condition ... .” This is known as the continuous treatment doctrine whereby the statute of limitations does not even begin to start running until the end of the course of treatment (see McDermott v Torre, 56 NY2d 399 [1982]; Borgia v City of New York, 12 NY2d 151 [1962]). The continuous treatment doctrine is based on the premise that it is in the patient’s best interest to continue with the ongoing course of treatment rather than interrupt treatment with a lawsuit because the caregiver is in the best position to identify and correct any malpractice (McDermott, supra at 408). Any continuing relationship of trust between the patient and the caregiver is severed, however, by the commencement of the legal process, which ends the continuous treatment tolling at that point (Toxey v State of New York, 279 AD2d 927 [2001]; Allende v New York City Health & Hosps. Corp., 90 NY2d 333 [1997]). Here, service of the notice of intention to file a claim on Defendant on June 5, 2003, extended Claimant’s time for commencing a claim until within two years of the accrual date (§ 10 [3] of the Court of Claims Act), but also effectively ended any continuous treatment tolling of the accrual date (Toxey v State of New York, supra ). Accordingly, June 5, 2003, the date of service of the notice of intention, is deemed to be the accrual date, and claim no. 110935 which was filed and served on May 25, 2005, within two years of the June 5, 2003 accrual date, is timely. Defendant’s cross-motion (CM-72674) for summary judgment dismissing the claim as being untimely is, therefore, denied.

Claimant’s Motion (M-72579)

Because the Court has denied Defendant’s cross-motion for summary judgment dismissing claim no. 110935, it is unnecessary for the Court to address Claimant’s original motion for leave to late file a claim. Claimant’s motion (M-72579) is, therefore, denied as moot.

Based on the foregoing, it is hereby

ORDERED, that Claimant’s motion for leave to late file a claim (M-72579) is denied as moot, and it is further

ORDERED, that Defendant’s cross-motion for summary judgment dismissing claim no. 110935 (CM- 72674) is denied.



January 23, 2007
Buffalo, New York

HON. JEREMIAH J. MORIARTY III
Judge of the Court of Claims




[2].The claim is annexed to Defendant’s papers as Exhibit B. Unfortunately, Claimant did not number the separate paragraphs contained in his 8 page handwritten claim. Exhibit C, cited herein, is an exact duplicate of the claim with the paragraphs numbered by Defendant’s counsel for ease of reference.