New York State Court of Claims

New York State Court of Claims

BROWNE v. THE STATE OF NEW YORK, #2009-015-136, Claim No. 115736, Motion No. M-75843


Defendant's pre-answer motion to dismiss medical malpractice claim as untimely was denied. At this early stage in the proceedings it could not be determined as a matter of law that the continuing treatment doctrine did not apply so as to render the notice of intention untimely.

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:
Kendall Browne, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Paul F. Cagino, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 13, 2009
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant moves for dismissal of the claim pursuant to CPLR 3211(a) (2) and (8) on the ground that the claimant failed to serve a copy of the claim upon the Attorney General as required by Court of Claims Act §§ 10 (3) and 11 (a). On August 25, 2008 the claimant, proceeding pro se, filed a claim to recover damages for injuries allegedly sustained as the result of the defendant's failure to provide reasonable and prompt medical care during the period from February 20, 2008 through July 17, 2008.

Defendant's motion to dismiss the claim is supported by an affidavit of Lenore Perrott, Senior Clerk in the Claims Bureau of the Albany Office of the Attorney General. Ms. Perrott avers that she searched the electronic database maintained by the Attorney General's office and found that a Notice of Intention to File a Claim had been served on the Attorney General by certified mail on August 8, 2008. There was, however, no record of receipt of a claim. Defense counsel acknowledges in his affirmation in support of the motion that a Notice of Intention To File a Claim was served by certified mail, return receipt requested, on August 8, 2008 but contends nevertheless that dismissal is appropriate because the claim was not served upon the Attorney General. Counsel asserts further that the claimant is now foreclosed from serving a claim because the notice of intention to file a claim was not timely in that "the initial date . . . the incident accrued was February 20, 2008" (Affirmation in Support of Paul Cagino, ¶¶ 7 and 8) .

In opposition to the instant motion, claimant asserts that a claim was served upon the Attorney General on November 18, 2008, a date subsequent to the search of the Attorney General's files described by Ms. Perrott in her affidavit. Claimant argues that the filing and service of the claim were timely because the notice of intention was timely and properly served on August 8, 2008. In this regard he contends that the defendant's negligence was "ongoing" and his medical condition could not be properly diagnosed until his release from prison on July 17, 2008 ("affirmation" of claimant, ¶ 4).

Court of Claims Act § 10 [3] requires that a claim to recover damages for negligence or unintentional tort be filed and served upon the attorney general within 90 days after the claim accrues "unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after the accrual of such claim." As a general rule, a medical malpractice claim accrues upon the date of the alleged wrongful act or omission (Nykorchuck v Henriques, 78 NY2d 255 [1991]). The continuous treatment doctrine, codified in CPLR 214-a, was first established in Borgia v City of New York (12 NY2d 151 [1962]) and provides a stay of the statutory limitations period “when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint” (McDermott v Torre, 56 NY2d 399, 405 [1982], quoting Borgia v City of New York, 12 NY2d at 155; Young v New York City Health & Hosps. Corp., 91 NY2d 291, 296 [1998]). Here, the defendant does not allege a defense regarding the sufficiency of the notice of intention to file a claim (Court of Claims Act § 11 [b]), which specifically alleges a failure to provide reasonable and adequate medical care from February 20, 2008 through May 28, 2008 "and two months there after [sic]" (see defendant's Exhibit 1 [c]). Thus, at this stage of the proceedings it cannot be determined as a matter of law that the notice of intention served on August 8, 2008 was untimely. As a result, defendant failed to establish that the claim filed on August 25, 2008 and allegedly served on November 18, 2008 was untimely.

Accordingly, defendant's motion is denied.

February 13, 2009
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated November 10, 2008;
  2. Affirmation of Paul F. Cagino dated November 10, 2008;
  3. Affidavit of Lenore Perrott sworn to November 10, 2008 with exhibits;
  4. "Affirmation" of Kendall Browne dated November 24, 2008.