New York State Court of Claims

New York State Court of Claims

SOLIS v. THE STATE OF NEW YORK, #2008-044-593, Claim No. 110642, Motion Nos. M-75401, CM-75495


Synopsis


Claimant’s motion for an “order not to dismiss the claim” is denied; defendant’s motion to dismiss is granted.

Case Information

UID:
2008-044-593
Claimant(s):
OSVALDO SOLIS
Claimant short name:
SOLIS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110642
Motion number(s):
M-75401
Cross-motion number(s):
CM-75495
Judge:
CATHERINE C. SCHAEWE
Claimant’s attorney:
OSVALDO SOLIS, pro se
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: James E. Shoemaker, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 17, 2008
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate proceeding pro se, filed this claim to recover for the alleged negligent medical treatment he received from defendant State of New York (defendant) while he was incarcerated at Woodbourne Correctional Facility (Woodbourne). Defendant answered and asserted several affirmative defenses. Claimant now moves for “an ORDER NOT TO DISMISS THE CLAIM.” Defendant cross-moves to dismiss the claim.

Claimant has provided only a notice of motion, a copy of a Report of Operation from Albany Medical Center Hospital, and an affidavit of service. Claimant has not provided an affidavit in support of this motion as required by CPLR 2214 and the Uniform Rules for the Court of Claims § 206.8 (a) (see also 4 Weinstein-Korn-Miller, NY Civ Prac ¶ 2214.02). Without a supporting affidavit, the Court cannot determine what affirmative relief claimant may be requesting in his “motion.” However, the Court will treat claimant’s papers as having been submitted in opposition to defendant’s cross motion to dismiss.

Defendant argues that the Court of Claims does not have jurisdiction over claimant’s cause of action for violation of the United States Constitution, thus requiring dismissal of that cause of action. Defendant also contends that to the extent that claimant may be asserting a cause of action for failure to diagnose and treat his illness, the continuous treatment doctrine does not apply, and both the notice of intention and claim are untimely. Further, defendant contends that the claim does not satisfy the strict pleading requirements of Court of Claims Act § 11 (b), and therefore fails to state a cause of action.

Conversely, claimant argues that his protection under both the Eighth and Eleventh Amendments of the United States Constitution was violated, and that he should be compensated.

As defendant correctly notes, the Court of Claims does not have jurisdiction to consider a cause of action alleging a violation of the Federal Constitution (see Brown v State of New York, 89 NY2d 172, 184 [1996]; see also Tooks v State of New York, Ct Cl, Jan. 10, 2006, Sise, P.J., Claim No. 106164, Motion No. M-69401 [UID # 2006-028-500], affd 40 AD3d 1347 [2007],

lv denied
9 NY3d 814 [2007]). Accordingly, that cause of action is hereby dismissed.

Claimant alleges that he has been suffering from a cough and has had difficulty breathing since June 24, 2004, when he first complained to medical staff at Woodbourne, and that defendant has failed to promptly and properly diagnose and treat these symptoms. Claimant also alleges that 7 NYCRR 250.2 (a), (c-e); 701-702, and DOCS Employees’ Manual sections 2.1, 2.2, 3.4 - 8.1 were “maliciously and intentional [sic] Violated” (Verified Claim, ¶ 4).

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 cause of action for medical malpractice, the claim must be filed with the Clerk of the Court and served upon the Attorney General within 90 days after the accrual of the claim, unless a notice of intention to file a claim is served upon the Attorney General within 90 days after the accrual of such claim (Court of Claims Act § 10 [3]). Further, in a claim to recover for damages caused by the intentional conduct of an officer or employee of the State, a claim must be filed and served, or a notice of intention served within 90 days as well (Court of Claims Act § 10 [3-b]).

Claimant’s cause of action for medical negligence or malpractice accrued on June 24, 2004, when claimant first complained of coughing and stated that he was having difficulty breathing. In order for this action to be timely, claimant was required to either serve a notice of intention to file the claim, or to file and serve the claim by September 22, 2004. By his own admission, the notice of intention was not served until February 16, 2005 (Verified Claim, ¶ 7).[1] Further, the claim herein was filed with the Clerk of the Court on March 16, 2005, and served upon the Attorney General on March 14, 2005 (Affirmation of James E. Shoemaker, Assistant Attorney General [AAG], Exhibit B), both clearly more than 90 days after its accrual.[2]

Claimant is also apparently alleging that he sustained injury to his liver as a result of his treatment for Hepatitis C.[3] To the extent that claimant may be asserting a cause of action for lack of informed consent by alleging that he is suffering an undisclosed side effect from the treatment, the claim would have accrued at the time of his initial treatment. Based upon a Request and Report of Consultation issued by Woodbourne Facility physician M. Makram on October 19, 2004 – which was attached to the claim filed with the Clerk of the Court – the treatment began on April 9, 2004. A cause of action for lack of informed consent would also be subject to the 90-day limitations period of Court of Claims Act § 10 (3). The claim would clearly be untimely with respect to this cause of action as well.

Claimant’s failure to timely serve a notice of intention, or to timely file and serve this claim, deprives the Court of subject matter jurisdiction (see Lichtenstein v State of New York,

93 NY2d 911, 913 [1999]; Tooks v State of New York, 40 AD3d 1347 [2007], lv denied 9 NY3d 814 [2007]). Accordingly, defendant’s motion is granted and Claim No. 110642 is dismissed.


December 17, 2008
Binghamton, New York

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


The following papers were read on claimant’s motion and defendant’s cross motion:

1) Notice of Motion filed on August 15, 2008, and attached exhibit.

2) Notice of Cross Motion filed on September 5, 2008; Affirmation of James E. Shoemaker, AAG, dated September 3, 2008, and attached Exhibits A and B.


Filed papers: Claim filed on March 16, 2005; Verified Answer filed on May 2, 2005.


[1]. The Court notes that the Verified Claim filed with the Court contains two paragraphs numbered “7.” The notice of intention is discussed in the first paragraph “7.”
[2]. The 90-day period within which to file and serve the claim or to serve the notice of intention to file a claim may be 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, 35 AD3d 948 [2006]). Claimant’s allegations essentially contend that the medical staff failed to properly render a timely diagnosis and establish a proper course of treatment. Under the law, such conduct does not constitute continuous treatment (see Young v New York City Health & Hosps. Corp., 91 NY2d 291, 297 [1998]; Toxey v State of New York, 279 AD2d 927 [2001], lv denied 96 NY2d 711 [2001]; White v Murphy, 277 AD2d 852 [2000]).
[3]. This allegation is contained in the second paragraph “7”of the claim as filed with the Court.