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).
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 ;
Borgia v City of New York, 12 NY2d 151 ). 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 ;
Allende v New York City Health & Hosps. Corp., 90 NY2d 333 ).
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  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.