This is claimant’s motion for permission to file a late claim, based on
defendant’s alleged “deliberate and intentional denial of medical
care” for an injured finger he sustained in a basketball game at
Shawangunk Correctional Facility on November 30, 2006.
According to claimant’s allegations, which are not disputed by defendant
and which are accepted as true for the purpose of this motion, he was originally
taken to sick call at about 8:45 p.m., after injuring his finger while blocking
a shot, and was seen by a nurse who applied a splint. He was also seen by a
nurse the next day, a Friday, but did not see a doctor or have an X-ray taken
until three days later. On December 6, claimant filed a grievance alleging he
was not being given proper medical attention. That grievance was denied, with
the Shawangunk Superintendent finding that claimant’s treatment was
“consistent with the protocols for his injury” (Exhibit 3). On
January 31, 2007, claimant’s appeal from that decision was denied, based
on the lack of “evidence of staff negligence or a violation of
On December 12, a doctor informed claimant of the X-ray results, prescribed
Naproxen and told him he would be seen by a specialist. On January 17, 2007,
claimant was seen by an orthopedic specialist, Dr. Arliss, who discontinued the
medication and splint. On February 28, 2007, Dr. Arliss told claimant that he
had torn ligaments, would require physical therapy and prescribed Ibuprofen.
Claimant alleges he suffered severe pain, swelling and numbness throughout this
On March 22, 2007, claimant served a notice of intention to file a claim on
defendant by certified mail, return receipt requested. The notice of intention
details the treatment he had received to date and alleges that such treatment
On June 6, 2007, Dr. Arliss again told claimant he had torn ligaments and
discontinued the physical therapy and medication because they were not helping.
On August 3, 2007, claimant was seen by Dr. Rubinovich who examined his injury
and told claimant he was referring him to a surgeon.
Claimant’s allegations are generally supported by the excerpts from his
medical records submitted as part of his application. In particular, Dr.
Rubinovich wrote on August 3, 2007 that claimant “had a dislocation of the
PIP joint which he reduced on his own . . . I think that he has definitely got a
neurapraxia of his nerve down the lateral border of his finger. Additionally,
he may have some extensor tendon damage. This is beyond my level of expertise.
I would appreciate him seeing one of the hand specialists for further
consultation” (Exhibit 7).
The basis of the proposed claim is the allegation that defendant’s
employees failed to render proper and adequate treatment for his injury from the
commencement of that treatment throughout the period referenced in the proposed
claim. Defendant does not dispute that it was served with claimant’s
notice of intention on March 22, 2007, a fact that is in any event proven by
claimant’s submission of the stamped receipt for his certified mailing on
that date. The contents of that document clearly set forth claimant’s
allegations with sufficient detail so as to provide the opportunity for a prompt
and thorough investigation. Lepkowski v State of New York (1 NY3d 201
). There is no question that claimant does not need the court’s
permission to file his claim insofar is it pertains to allegations of wrongdoing
within 90 days prior to such service. The issue is whether he needs such
permission with respect to his allegations regarding the three-week period
between December 1, 2006 and December 22, 2006.
What claimant alleges in his notice of intention and proposed claim is a
“course of treatment...[that] has run continuously and is related to the
same original condition or complaint.” Borgia v City of New York
(12 NY2d 151, 155 ); see also Young v New York City Health & Hosps.
Corp. (91 NY2d 291 ); Ogle v State of New York (142 AD2d 37 [3d
Dept 1988]). Thus, commencement of the time period in which claimant could
timely commence an action, without regard to analysis under §10(6), was
tolled and his service of the notice of intention on March 22, 2007 “was
timely under the continuous treatment rule.” Robinson v State of New
York (35 AD3d 948 [3d Dept 2006]). In Robinson, a pro se
inmate who did not appreciate the application of the continuous treatment rule
made a motion for permission to late file. The Third Department noted that the
motion was “unnecessary and he should have been directed to file the
claim” (id. 949).
Accordingly, there is no need to evaluate claimant’s application pursuant
to the standards of §10(6). He served an adequate and timely notice of
intention to file a claim by a method authorized by statute. The motion is
granted to the extent that claimant is directed to serve and file his claim (the
proposed claim attached to the notice of motion, duly verified on October 23,
2007) in accordance with the applicable provisions of the Court of Claims Act
and the Uniform Rules for the Court of Claims, with particular reference to
manner of service and payment or application for reduction of the filing