New York State Court of Claims

New York State Court of Claims

STARNES v. THE STATE OF NEW YORK, #2007-042-504, Claim No. NONE, Motion No. M-72872


This is a motion brought by claimant seeking permission to file a late claim pursuant to Court of Claims Action Section 10 (6). The defendant opposes the motion on the grounds that the claim is time-barred and that claimant does not meet the statutory standards. Claimant’s motion is denied.

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:
Attorney General of the State of New York
By: THOMAS M. TRACE, ESQ.Senior Attorney
Third-party defendant’s attorney:

Signature date:
March 12, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


This is a motion brought by the claimant seeking permission to file a late claim pursuant to Court of Claims Act Section 10 (6). The following papers were considered by the Court:

  1. Notice of Motion, filed January 24, 2007
    1. Affidavit of Gregory Starnes, sworn to January 18, 2007
    2. Claim, incomplete affidavit of service, and letter dated January 16, 2007, annexed to the moving papers
    3. Opposition affirmation of Thomas M. Trace, Esq., dated February 13, 2007
    4. Exhibits A - C, annexed to the opposition affirmation
  2. Reply statement of Gregory Starnes, filed March 7, 2007, together with assorted attachments

This matter comes before the court on a motion by claimant seeking permission to file a late claim, pursuant to Court of Claims Act Section 10 (6). The defendant opposes the motion on the grounds that the claim is time-barred, and that even if this application was timely made, claimant does not meet the statutory standards for a grant of permission to file a late claim.

The underlying facts are straightforward and undisputed in this motion. Accepting the allegations of the claim as true for purposes of this motion, on March 31, 2003, while an inmate at the New York State Department of Correctional Services’ Oneida Correctional Facility, claimant was screened by the medical staff and diagnosed with “hepatitis C” (hereinafter referred to simply as “hepatitis”). However, claimant was not informed of the diagnosis and was thereafter released from incarceration; claimant was subsequently re-incarcerated. In September 2006 claimant was again tested and was at that time notified by a physician at the Groveland Correctional Facility that he had hepatitis[1]. Said physician also notified claimant of the original 2003 diagnosis. Claimant contends that because of the negligence of the state, claimant was denied the opportunity to receive information and timely treatment of the hepatitis.

The attorney general acknowledges that it received a Notice of Intention to File Claim on December 14, 2006 and that the Motion for Permission to File a Late Claim and the proposed Claim were received on January 24, 2007. It is the contention of the defendant that the action sounds in ordinary negligence, that it is subject to a three year statute of limitations, that the cause of action accrued on March 31, 2003, and is therefore time-barred.

The court is in accord with the position of the defendant. Court of Claims Act § 10 (6) provides that a claimant who has not timely filed or served a claim or timely served a notice of intention may nevertheless seek leave of the court to file such claim, provided such permission is sought “at any time before an action asserting a like claim against a citizen of the state would be barred” under the provisions of applicable law.

In this case, the applicable time limitation would be three years from date of accrual in the case of negligence (CPLR § 214) or two and one-half years from the date of accrual in the case of medical malpractice (CPLR § 214-a).

This action sounds in negligence. The Court of Appeals has stated that:

[l]iability in negligence may . . . rest on some form of written misrepresentation or nondisclosure on the part of defendant by which plaintiff [claimant] . . . is misled, resulting in injury or damage to plaintiff [claimant].

(Eiseman v State of New York, 70 NY2d 175).

As has been recently noted, an action properly sounds in “ordinary negligence” when it seeks to hold a physician liable for “his or her failure to communicate significant medical findings to a patient or her treating physician” (Mosezhnik v Berenstein, 33 AD3d 895, 898; see Playford v Phelps Memorial Hosp. Center, 254 AD2d 471; Caracci v State of New York, 203 AD2d 842).

Moreover, the date of accrual of the negligence is the date the defendant presumably should have disclosed the diagnosis, rather than the date of the patient’s discovery of the diagnosis - as inequitable as this might be. In Playford v Phelps Memorial Hospital Center, 254 AD2d 471, the plaintiff was mistakenly told in 1992 that defendant’s tests indicated plaintiff was HIV negative. In December 1995 plaintiff learned that she had in fact been HIV positive, and two of her children, born after the false report, were HIV positive. The Appellate Court stated that:

until the Legislature provides otherwise, the three-year Statute of Limitations applicable to a “negligence” action like the one at bar, which does not involve exposure to toxic substances (cf., CPLR 214-c), commences to run on the date of the “occurrence” of the injury, not the date when it was “discovered” (CPLR 214 [5]; see, e.g., Blanco v American Tel. & Tel. Co., 90 NY2d 757; Snyder v Town Insulation, 81 NY2d 429; Jackson v L.P. Transp., 72 NY2d 975; Thornton v Roosevelt Hosp., 47 NY2d 780).

Playford v Phelps Memorial Hospital Center,
254 AD2d 471 - 472.

Claimant would only benefit from the application of the medical malpractice statute of limitations, which is shorter, if he were able to invoke the exception in CPLR 214-a which provides that the time limitation is measured not from the date of original accrual, but from the date of “last treatment where there is continuous treatment for the same illness, injury or condition” which gave rise to the claim. The statutory exception has no application under the facts of this case, however. Claimant’s action is based upon his argument that he received no treatment whatsoever during the gap period. The Court of Appeals has addressed this fact pattern and determined that this fact scenario is not the type that was designed to be addressed by the continuous treatment exception to the statute:

[t]he 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 (citations omitted).

(Young v New York City Health & Hospitals Corp., 91 NY2d 291, 296). The court applied this rationale to the facts of its case, involving a plaintiff who alleged that she was not told of her breast condition and continued to treat with her physician for other unrelated matters. The court found that “plaintiff alleges nothing more than defendants’ failure to timely diagnose and establish a course of treatment for her breast condition, omissions that do not amount to a ‘course of treatment’” (Young v New York City Health & Hospitals Corp., 91 NY2d 291, 297, citing with favor, Nykorchuck v Henriques, 78 NY2d 255, 259).

Inasmuch as this claim is time-barred, the court need not review the statutory standards applicable to the court’s determination of its discretionary power to allow a late claim under Court of Claims Act § 10 (6), as this review is moot.

The claimant’s motion is denied.

March 12, 2007
Utica, New York

Judge of the Court of Claims

[1]. Claimant’s Notice of Intention states that he was not informed by the Groveland physician of the original diagnosis until October 2006. The time discrepancy is not critical to this decision.