New York State Court of Claims

New York State Court of Claims

SMITH v. THE STATE OF NEW YORK, #2007-038-570, , Motion No. M-73936


Motion to file a late claim denied as untimely. Continuous treatment toll of medical malpractice statute of limitations (CPLR 214-a) would have expired upon claimant’s release from incarceration

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:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Paul F. Cagino, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 7, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant seeks permission to file and serve a late claim pursuant to Court of Claims Act § 10 (6). The proposed claim alleges that defendant failed to provide proper medical treatment for a knee injury sustained by claimant while he was playing football during his incarceration at Franklin Correctional Facility. The claim alleges that the incident occurred in September or October 1997. The threshold issue is whether this motion is timely. A motion seeking permission to file a late claim must be filed “before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules” (Court of Claims Act § 10 [6]). The failure to file the motion within the prescribed time period is a jurisdictional defect which precludes the court from granting such a motion (see Matter of Miller v State of New York, 283 AD2d 830, 831 [3d Dept 2001]; Bergmann v State of New York, 281 AD2d 731, 733-734 [3d Dept 2001]; Williams v State of New York, 235 AD2d 776, 777 [3d Dept 1997], lv denied 90 NY2d 806 [1997]).

The claim alleges medical malpractice, which is subject to a statute of limitations of two years and six months (see CPLR 214-a). Claimant’s cause of action accrued in September or October 1997, “the date when the alleged original negligent act or omission occurred” (Young v New York City Health & Hosps. Corp., 91 NY2d 291, 295 [1998]). Thus, a like claim against a citizen of the State would have been barred no later than sometime in April 2000. To the extent that the proposed claim can be read to assert a cause of action sounding in simple negligence, it would be subject to a three-year statute of limitations (see CPLR 214 [5]), which would have expired no later than October 2000. Accordingly, whether the proposed claim asserts either medical malpractice or simple negligence, this motion, which was not filed until September 2007, is untimely.

Acknowledging that his claim accrued no later than October 1997, claimant conclusorily asserts that his claim would not be time barred under the provisions of article two of the CPLR. To the extent he relies on the continuous treatment toll set forth in CPLR 214-a to extend the expiration of the statute of limitations that is applicable to his claim sounding in medical malpractice, he has failed to set forth any facts or legal argument in support of application of that toll, and thus, the Court cannot find that it applies (see Doe v State of New York, UID # 2000-018-052, Motion No. M-61652, Fitzpatrick, J. [Oct. 11, 2000]). Moreover, application of the continuous treatment toll would not render this motion timely. “The toll of the continuous treatment doctrine was created to enforce the view that a patient should not be required to interrupt corrective medical treatment by a physician and undermine the continuing trust in the physician-patient relationship in order to ensure the timeliness of a medical malpractice action or notice of claim” (Young, at 296). Even if claimant demonstrated the existence of a qualifying physician-patient relationship in the years that he was incarcerated immediately following his injury, claimant was initially released from the custody of the Department of Correctional Services (DOCS) in February 2001 (see Proposed Claim, at ¶ 7). Any physician-patient relationship with defendant’s employees or agents would have been severed upon his release from the custody of DOCS, and the continuous treatment toll would have expired at that time (see Lovell v State of New York, UID #2007-044-504, Claim No. 106742, Motion No. M-72499, Schaewe, J. [Jan. 26, 2007]). Although claimant’s papers state that he was returned to the custody of DOCS at a later date, he has not set forth any facts that would support a finding of continuous treatment after his initial release. Because the instant motion was not filed until more than two years and six months after February 2001, its merits cannot be considered even if the continuous treatment toll was applied. Defendant’s remaining arguments in opposition to the motion need not be addressed.

Accordingly, it is

ORDERED, that Motion No. M-73936 is DENIED.

November 7, 2007
Albany, New York

Judge of the Court of Claims

Papers considered

(1) Motion for Permission to File a Late Claim, dated August 30, 2007, with exhibits;

(2) Affirmation in Opposition of Paul F. Cagino, AAG, dated September 26, 2007, with exhibit A.