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  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 ).
The continuous treatment doctrine, codified in CPLR 214-a, was first established
in Borgia v City of New York (12 NY2d 151 ) 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 , quoting Borgia v City of New York, 12 NY2d
at 155; Young v New York City Health & Hosps. Corp., 91 NY2d 291, 296
). 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.