New York State Court of Claims

New York State Court of Claims

LOVELL v. THE STATE OF NEW YORK, #2007-044-504, Claim No. 106742, Motion No. M-72499


Synopsis


Notwithstanding the toll of the limitations period pursuant to the continuous treatment doctrine, a cause of action for medical malpractice is dismissed as untimely where claimant failed to file a notice of intention to file a claim or a claim within 90 days of his release from DOCS custody in June 2002. Additionally, the statute of limitations to commence a medical malpractice action expired, and a motion to file a late claim would be untimely.

Case Information

UID:
2007-044-504
Claimant(s):
RICHARD LOVELL
Claimant short name:
LOVELL
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106742
Motion number(s):
M-72499
Cross-motion number(s):

Judge:
CATHERINE C. SCHAEWE
Claimant’s attorney:
SIGMUND V. MAZUR, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Michele M. Walls, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 26, 2007
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant filed this claim alleging that he received negligent medical care while in the custody of the Department of Correctional Services. Defendant answered and asserted that the filing and service of the claim were untimely. Defendant now moves to dismiss the claim. Claimant has failed to respond to the motion.

Claimant alleges that in August 2000 he was diagnosed with a hernia while an inmate at Elmira Correctional Facility. On or about December 8, 2000, claimant underwent a “laproscopic [sic] hernia repair” at Albany Medical Center. Claimant avers that he suffered complications from the surgery and that he received negligent post-operative treatment from defendant’s physicians up to the date that he was released from custody on June 10, 2002.

The filing and service requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]; Conner v State of New York, 268 AD2d 706, 707 [2000]). Court of Claims Act § 11 (a) provides that a copy of the claim shall be served personally or by certified mail, return receipt requested, upon the Attorney General within the time prescribed in Court of Claims Act § 10. In an action to recover damages for personal injuries caused by the negligence or unintentional tort of an officer or employee of the State, such as a claim for medical malpractice, the claim must be filed with the Clerk of the Court and served upon the Attorney General within ninety days after the accrual of the claim, unless a notice of intention to file a claim is served upon the Attorney General within ninety days after the accrual of such claim (Court of Claims Act § 10 [3]). The 90-day period in which to file and serve the claim or to serve the notice of intention to file a claim is tolled pursuant to the continuous treatment doctrine in a situation where the claimant has received "continuous treatment for the same illness, injury or condition which gave rise to the [alleged act of malpractice]" (CPLR 214-a; see Ogle v State of New York, 142 AD2d 37, 39 [1988]; see also Matter of Robinson v State of New York, AD3d , 2006 NY Slip Op 09098 [3rd Dept, Dec. 7, 2006]).

In this case, however, the claim is untimely notwithstanding application of the continuous treatment doctrine. Claimant was released from custody on June 10, 2002 and his treatment by defendant’s physicians ceased at that time. In order for this action to be timely, either a notice of intention to file a claim would have to have been served, or alternatively the claim would have to have been filed and served, on or before September 9, 2002.[1] Accordingly, this claim filed on October 4, 2002 is untimely.

In addition, an application for permission to file a late claim also would be untimely. Pursuant to Court of Claims Act § 10 (6), a claimant may make a motion for permission to file a late claim “at any time before an action asserting a like claim against a citizen of the state would be barred [by the statue of limitations]”. The statute of limitations in a medical malpractice action is 2½ years (CPLR 214-a), and thus claimant would have had to make a motion to file a late claim on or before December 10, 2004. Because claimant did not file such a motion by that date, late claim relief is not available.[2]

Defendant’s motion is granted and the claim is dismissed.

January 26, 2007
Binghamton, New York

HON. CATHERINE C. SCHAEWE
Judge of the Court of Claims


The following papers were read on defendant’s motion to dismiss:

1) Notice of Motion filed on November 6, 2006; Affirmation of Michele M. Walls, AAG, dated October 31, 2006 with annexed Exhibit A.

Filed Papers: Claim filed on October 4, 2002; Verified Answer filed on November 12, 2002.



[1]. September 8, 2002, the 90th day after the accrual of the claim, was a Sunday and therefore, claimant had until the next business day (Monday, September 9, 2002) to file and serve the claim (see General Construction Law § 20).
[2]. To the extent that claimant may assert a cause of action in negligence rather than medical malpractice, the applicable statute of limitations would be three years (CPLR 214 [5]). At this time, a motion to file a late claim under that theory would also be untimely.