New York State Court of Claims

New York State Court of Claims

BENJAMIN v. THE STATE OF NEW YORK, #2008-030-555, Claim No. 115343, Motion No. M-75244


Pre-answer motion to dismiss granted. Despite argument that claim accrued when inmate claimant saw an MRI report in April 2008 and realized that surgery performed in 2001 was allegedly performed improperly, accrual was in 2001 not 2008, and claim is untimely. The wire or other device used in the surgery is not a foreign object under the statute; nor does the continuous treatment doctrine apply.

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:
Third-party defendant’s attorney:

Signature date:
August 28, 2008
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on defendant’s pre-answer motion to

dismiss the claim herein:

1,2 Notice of Motion; Affirmation in Support of Motion to Dismiss by Barry Kaufman, Assistant Attorney General and attached exhibits

  1. Affirmation in Opposition to Motion to Dismiss by David Benjamin, claimant and attached papers
  1. Filed papers: Claim
David Benjamin alleges in his claim that on April 4, 2008 he received copies of some medical records concerning treatments he received for his shoulder on or about February 1, 2001 and, apparently, realized that such treatment had been inadequate. More specifically he writes that when he saw an MRI of his right shoulder completed sometime “in the year 2007” he read that a Dr. Stephen Schwartz - who had first examined him in the facility clinic on January 19, 2000 - delayed in giving him appropriate medical treatment until February 1, 2001 when Dr. Schwartz then performed surgery at Saint Agnes Hospital to repair, among other areas, his right rotator cuff. [Claim No. 115343, ¶¶ 2 and 3].

In lieu of an answer, the defendant has served the present motion to dismiss asserting that claimant has failed to timely serve the claim as required, resulting in a lack of jurisdiction. Defendant also argues that the claim is barred by the doctrines of res judicata and collateral estoppel, in that in a prior decision and order dismissing an earlier claim and denying late claim relief the petitioner had raised similar issues concerning his rotator cuff surgery. Finally, defendant argues that because the allegedly negligent physician is not a State employee the State cannot, therefore, be held liable for his negligence in any event.

Court of Claims Act §11(a) provides that the claim must be served personally or by certified mail, return receipt requested, upon the attorney general within the times prescribed in Court of Claims Act §10; and that service is complete when it is received in the Attorney General’s Office. Court of Claims Act §11(a)(i). A failure to serve the claim as required results in a lack of personal jurisdiction, unless the State has failed to properly plead jurisdictional defenses or raise them by motion. In that case, the defense is waived. Court of Claims Act §11(c).[1] Failure to serve the claim at all results in a lack of subject matter jurisdiction that is not waiveable.

In papers submitted in opposition to the present motion, claimant argues that his claim arose on April 4, 2008 when he reviewed a January 10, 2007 MRI report and compared it to an MRI report dated September 21, 1999, and realized that Dr. Schwartz had allegedly either performed the surgery incorrectly in February 2001 or concealed his errors (it is not precisely clear from the argument presented). [Affirmation in Opposition to Dismiss by David Benjamin, Claimant, dated July 18, 2008]. Mr. Benjamin indicates that the 1999 MRI report states that there is no fracture, and the second MRI report in January 2007 indicates “old fracture repair with wire, exactly where Dr. Stephen Schwartz had operated . . . [on claimant on February 1, 2001].” [Ibid. ¶2]. Claimant writes (sic):
“As a result of that fracture, the treating doctor had concluded that to repair of that fracture he had to remove his right deltoid musculature, that way he could fix the fracture with wire. Therefore he failed to repair his torn rotator cuff and his right long biceps tendon which has caused his pain and uncomfort and disabilities (please review the enclosed copies of repots as exhibits) which discloses injuries developed upon serious assaults on . . . [March 24, 1999].

. . . Upon that Dr. Stephen Schwartz had consealed the fracture of claimant’s upper portion of the claimant’s right upper arm, by not informing the claimant of the facts and also not reporting it in his operative report of his surgical performance of operative proceedings done on . . . [February 1, 2001].” [Ibid. ¶¶3 and 4].

Based on the allegations in the claim, it accrued in February 2001 when allegedly inadequate surgery occurred. While the surgery apparently involved the use of a wire of some type, this is not the type of medical malpractice claim whereby the date of discovery rules apply to measure when a claim arising from such alleged malpractice accrues -such as when a foreign object is left in a patient’s body[2] - or where a continuing wrong is alleged thereby extending the period within which a cause of action accrues.[3] Thus, this claim - served as it was on June 5, 2008 - is untimely, since it is served more than ninety (90) days after the claim accrued on February 1, 2001. Court of Claims Act §10(3). The issue of timeliness has been appropriately raised by defendant in this motion.

Because claimant has not established that he timely served the claim upon the Attorney General as required, and the defendant has raised the jurisdictional issue in a timely motion, the court lacks jurisdiction over the defendant, and the claim may be dismissed on this ground alone.[4] Court of Claims Act §11(a).

Accordingly, defendant’s motion to dismiss is granted, and Claim Number 115343 is in all respects dismissed.

August 28, 2008
White Plains, New York

Judge of the Court of Claims

[1]. “Any objection or defense based upon failure to comply with (i) the time limitations contained in section ten of this act, (ii) the manner of service requirements set forth in . . . [11(a)], or (iii) the verification requirements as set forth in . . . [11(b)] and . . . [Civil Practice Law and Rules 3022] is waived unless raised, with particularity, either by a motion to dismiss made before service of the responsive pleading is required or in the responsive pleading, and if so waived the court shall not dismiss the claim for such failure.”

[2]. See e.g. Civil Practice Law and Rules §214-a, providing in pertinent part that “[a]n action for medical . . . malpractice must be commenced within two years and six months of the act, omission or failure complained of
. . . where the action is based upon the discovery of a foreign object in the body of the patient, the action may be commenced within one year of the date of such discovery or of the date of the discovery of facts which would reasonably lead to such discovery, whichever is earlier . . . For the purpose of this section the term ‘foreign object’ shall not include a chemical compound, fixation device or prosthetic aid or device.” Even if a “wire” was placed in claimant’s body it has a medical purpose as a “fixation device” and thus is not a foreign object under these facts. LaBarbera v New York Eye and Ear Infirmary, 91 NY2d 207 (1998); Rockefeller v Moront,81 NY2d 560 (1993). “The rule that emerges [is that a] . . . ‘foreign object’ is one that is ‘negligently ‘left’ in the patient's body without any intended continuing treatment purpose . . . (citation omitted).” La Barbera v New York Eye and Ear Infirmary, supra at 212.
[3]. Another exception to the general rule of accrual is provided by the continuous treatment doctrine, whereby the statute of limitations does not begin to run until the end of the course of treatment, so long as the treatment (or lack thereof) “ . . . ’ is related to the same original condition or complaint’ (Borgia v City of New York, 12 NY2d 151, 155).” McDermott v Torre, 56 NY2d 399, 405 (1982). Such has not been alleged here.

[4]. The court does not reach the other grounds suggested for dismissal. It is noted, however, that if the surgeon is not a State employee, an affidavit by someone with knowledge would be required on the motion, and some additional argument concerning the role of independent contractors dispensing medical care to incarcerated persons would be expected. Additionally, an earlier claim filed by this claimant dismissed by this Court in 2004 [see Benjamin v State of New York, Claim No. 108834; Motion Nos. M-68050, M-68109, unreported decision (Scuccimarra, J., June 4, 2004)] mentions the same surgery and was dismissed for untimeliness. [Affirmation in Support of Motion to Dismiss by Barry Kaufman, Assistant Attorney General ¶6, Exhibit B]. The late claim motion was also decided on the ground that any application for late claim relief was untimely, and the details of any alleged malpractice were not supported by a physician’s affidavit in any event. Accordingly, the present claim is likely subject to dismissal on this ground as well. Civil Practice Law and Rules §3211(a) (5).