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