New York State Court of Claims

New York State Court of Claims

SANTIAGO v. THE STATE OF NEW YORK, #2008-009-002, Claim No. 113792, Motion Nos. M-73708, CM-73784


Synopsis


Claimant’s motion to dismiss three affirmative defenses asserted in defendant’s Answer was granted and defendant’s cross-motion for dismissal and/or for an order to compel was denied.

Case Information

UID:
2008-009-002
Claimant(s):
JOSE SANTIAGO
Claimant short name:
SANTIAGO
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113792
Motion number(s):
M-73708
Cross-motion number(s):
CM-73784
Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
JOSE SANTIAGO, Pro Se
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General
BY: Patrick F. MacRae, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
January 10, 2008
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Claimant has brought a motion (M-73708) seeking the dismissal of three of the Affirmative Defenses asserted by the defendant in its Verified Answer. Defendant has responded with a cross-motion (CM-73784) seeking dismissal of the claim, in whole or in part, and in the alternative for an order compelling claimant to fully respond to defendant’s previously served Demand for a Bill of Particulars and its omnibus discovery demands.

The following papers were considered by the Court in connection with these motions:
Notice of Motion, Affidavit in Support (M-73708) 1,2

Notice of Cross-Motion, Affirmation of Patrick F. MacRae, Esq., Assistant Attorney General, with Exhibits (CM-73784) 3,4


Memorandum of Law (in support of Cross-Motion) 5


Affidavit in Opposition to Cross-Motion 6


Filed Papers: Claim, Verified Answer.

In his filed claim, claimant, an inmate under the care and custody of the New York State Department of Correctional Services, seeks damages for personal injuries based upon allegations of medical malpractice, apparently first occurring during a surgical procedure on his right leg, which took place on March 9, 2004 at University Hospital in Syracuse.

A notice of intention to file a claim was served upon the Attorney General on or about September 19, 2005. The claim was then served upon the Attorney General on June 1, 2007, and filed with the Clerk of the Court of Claims on June 4, 2007.

In his motion (M-73708), claimant now seeks an order dismissing three of the affirmative defenses set forth in defendant’s Verified Answer. Among other defenses set forth in its Answer, defendant contends that this claim was untimely commenced (par 5), that the claim fails to state a cause of action (par 6) and that claimant failed to serve with the claim a certificate of merit as required by § 3012-a of the CPLR (par 14). In its cross-motion (CM-73784), defendant seeks an order dismissing the claim based upon those same affirmative defenses, and in the alternative further seeks an order of preclusion based upon claimant’s failure to provide full and complete responses to defendant’s Demand for a Bill of Particulars and its omnibus discovery demands.

The Court will separately address each of these issues raised in the motion and cross-motion.

TIMELINESS OF THE CLAIM

Pursuant to Court of Claims Act § 10(3), a claim based upon negligence (including medical malpractice) must be filed and served upon the Attorney General within 90 days of the date of accrual of the claim, unless within such 90 days the claimant serves upon the Attorney General a Notice of Intention to File a Claim. If a notice of intention is timely served, the claim must then be filed and served upon the Attorney General within two years after the date of accrual.

As previously indicated, this claim is apparently based upon a surgical procedure which took place on March 9, 2004 at University Hospital in Syracuse. Although claimant did not either serve a notice of intention, or serve and file a claim, within 90 days of this surgery, claimant relies upon the continuous treatment doctrine (CPLR § 214-a) to support his contention that this action was timely commenced.

In his claim, claimant not only makes specific reference to CPLR § 214-a, but he has also provided specific dates of further medical treatment or procedures which he contends are directly related to the March 9, 2004 operation.

Specifically, claimant alleges that emergency surgery was performed on his leg on April 5, 2004 to treat an infection, and he further alleges that he continued to receive treatment at Walsh Medical Center following this emergency surgery for a period of four months. Claimant also alleges that on July 11, 2005, he was returned to University Hospital to have a steel plate removed from his leg, which had been inserted during the original surgery of March 9, 2004. Claimant has also made further other non-specific allegations of additional, related medical treatment since that time.

From these allegations, it appears to this Court that the continuous treatment doctrine is applicable, and that the subsequent treatment and procedures set forth in the claim are directly related to the March 9, 2004 surgery.

Therefore, accepting claimant’s allegation that a steel plate was removed from his leg on July 11, 2005 (and that this plate had been inserted during the original March 9, 2004 surgery), the notice of intention served by claimant upon the Attorney General on September 19, 2005 was therefore timely. Furthermore, since claimant then served his claim on or about June 1, 2007, and filed his claim on June 4, 2007, within two years from the date of accrual of July 11, 2005, the claim has therefore been timely commenced pursuant to Court of Claims Act § 10(3).

In its cross-motion, however, defendant makes reference to claimant’s allegation that the claim “arises from malpractice that has been on-going since 1996 (see claim, par 2) and that the claim, in all respects, is therefore untimely. In his affidavit submitted in opposition to defendant’s cross-motion (see Item6, par 2), claimant acknowledges that this statement was inadvertent, and that his claim is based upon allegations of medical malpractice commencing with the surgery of March 9, 2004. Furthermore, based upon the Court’s review of the filed claim, it is readily apparent that this claim is in fact based upon the surgery, as well as the additional treatment and procedures rendered to claimant since that time.

Nevertheless, defendant is correct in its contention that any allegations of malpractice occurring before March 9, 2004 are untimely. Therefore, to the extent that the claim contains any allegations of malpractice occurring prior to March 9, 2004, those allegations are untimely and such causes of action, if any, are hereby dismissed. With respect to the causes of action based upon the surgery of March 9, 2004, however, the defense of untimeliness asserted in defendant’s Answer (see Answer, par 5) is hereby dismissed.

FAILURE TO STATE A CAUSE OF ACTION

Aside from its objections as to timeliness, defendant does not contend, in its cross-motion, that the claim otherwise fails to state a cause of action. Moreover, the Court has reviewed the contents of the claim, and finds that claimant has adequately set forth his causes of action sounding in negligent medical care, medical malpractice, and ministerial neglect. Defendant’s affirmative defense that claimant failed to state a cause of action (see Answer, par 6) is hereby dismissed.

FAILURE TO PROVIDE A CERTIFICATE OF MERIT

In its Answer (see par 14), defendant also contends that the claim is jurisdictionally defective due to the failure of claimant to serve with his claim a certificate of merit as required by CPLR § 3012-a. .

Claimant, however, is and has been proceeding pro se, and pro se litigants are specifically exempted from the statutory provision which requires a certificate of merit in claims based upon allegations of medical malpractice (CPLR § 3012-a[f]).

Accordingly, the claim is therefore not defective, since a certificate of merit is not required in this claim, and this defense must also be dismissed.

CLAIMANT’S RESPONSES TO DEFENDANT’S DEMAND FOR BILL OF PARTICULARS AND DEFENDANT’S OMNIBUS DISCOVERY DEMANDS

With its Verified Answer, defendant served upon claimant a Demand for a Verified Bill of Particulars and Omnibus Demands for Discovery, to which claimant then provided responses. Defendant contends that these responses are inadequate, and its objections appear to be based primarily upon the fact that claimant has, in many of his responses, referred to his medical records, without providing such medical records to the defendant.

As mentioned previously, claimant is a pro se litigant and more importantly, is an inmate under the care and custody of the Department of Correctional Services. Claimant has indicated a willingness to sign an authorization for release of his medical records, and defendant, with this release, should be able to obtain copies of claimant’s medical records without any difficulty whatsoever.

Furthermore, giving due consideration to both claimant’s pro se status as well as his current incarceration, the Court finds that the other responses previously provided by claimant are adequate.

Therefore, with the direction that claimant shall execute a proper authorization for the release of his medical records, if provided by the defendant, this aspect of defendant’s cross-motion is hereby denied.

Based upon the foregoing, therefore, it is

ORDERED, that claimant’s Motion No. M-73708, seeking dismissal of certain defenses raised by the defendant, is hereby GRANTED; and it is further

ORDERED, that the defenses asserted in defendant’s Verified Answer in paragraphs 5, 6, and 14 are hereby STRICKEN; and it is further

ORDERED, that to the extent this claim asserts any causes of action for medical malpractice or negligence accruing prior to March 9, 2004, those causes of action are hereby DISMISSED; and it is further

ORDERED, that in all other aspects, defendant’s Cross-Motion No. CM-73784, is hereby DENIED.


January 10, 2008
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims