New York State Court of Claims

New York State Court of Claims

ARIOLA v. STATE OF NEW YORK, #2009-018-017, Claim No. NONE, Motion No. M-75923


Movant’s motion to treat the notice of intention as a claim is hereby denied.

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:
Attorney General of the State of New York
By: Heather R. Rubinstein, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 19, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Movant brings a motion for permission to treat the notice of intention as a claim pursuant

to Court of Claims Act § 10(8)(a). Defendant opposes the motion.

The notice of intention provides that:
“On 3/3/01 UMU [State University of New York Upstate Medical University] conducted medical tests, invasive upon the body while the Claimant was a
minor and without informed consent. After years of trying to get the claimant to pay a bill in the amount of $3,879.55, engaging in tactics of placing the Claimant in duress by threatening to make the litigation emotion based upon the fact that the Claimant killed his father, initiated a suite [sic] to recover the amount, even though over $1,000.00 was paid already and the suite [sic] did not have any legal sufficiency to it, which was dismissed based upo [sic] the failure of the Plaintiff to serve a complaint timly [sic] on 7/26/07.

As a result of the State’s actions, Movant recites in the notice of intention that he plans to bring a legal claim for “tortful [sic] bodily intrusion, fraud, malicious abuse of process and intentional and negligent misconduct.” Movant seeks $10,000 in damages.

Movant served the notice of intention upon the Attorney General by certified mail, return receipt requested on August 30, 2007. Movant now seeks relief under Court of Claims Act § 10(8)(a) for permission to treat the notice of intention as a claim. Defendant argues that the notice of intention cannot be treated as a claim because it fails to provide all the facts necessary for it to constitute a claim and the notice of intention was untimely when served.

Court of Claims Act § 10(8)(a) provides:

[a] claimant who timely serves a notice of intention but who fails to timely serve or file a claim may, nevertheless, apply to the court for permission to treat the notice of intention as a claim. The court shall not grant such application unless: it is made upon motion before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules; the notice of intention was timely served, and contains facts sufficient to constitute a claim; and the granting of the application would not prejudice the defendant.”

Neither this motion nor the notice of intention were timely served for any cause of action arising from the State’s alleged performance of invasive medical tests without informed consent on March 3, 2001. Whether the substance of Movant’s claim is that he did not consent to any of the medical tests performed, which is what his argument seems to be, or if he is arguing that the tests conducted were beyond the scope of his consent, the issues are untimely. If Movant did not consent and, in fact, objected to the performance of any medical tests, his claim sounds in a civil battery and not medical malpractice-lack of informed consent (see Salandy v Bryk, 55 AD3d 147, 162-163 [Carni, J. concurring in part and dissenting in part]). An action for battery has a one-year statute of limitations, which would have expired on March 3, 2002 (CPLR 215). However, even if the substance of his claim is that the medical tests went beyond what Movant authorized, or involved a lack of informed consent, this would sound in medical malpractice, and the notice of intention and motion were served more than two and one-half years from March 3, 2001, and are untimely (see CPLR 214-a; Salandy, 55 AD3d at 162; Messina v Matarasso, 284 AD2d 32).

As for Movant’s assertion that the State engaged in improper conduct in trying to get him to pay an outstanding bill, Movant alleges that the State commenced an action against him and threatened to bring out in the course of litigation “the fact that [movant] killed his father.”[1] This is the only “improper” conduct that can be gleaned from the notice of intention. To the extent Movant argues that this presents a cause of action for an intentional tort, including “abuse of process”[2] this motion is untimely (see Critton v State of New York, Ct Cl, Lebous, J. signed April 21, 2003, Claim No. 97597 [UID # 2003-019-005], affd 12 AD3d 216). Any intentional cause of action accrued, for purposes of this determination, at the very latest on July 26, 2007. A cause of action for intentional conduct must be commenced under article two of the civil practice law and rules within one year from the date of accrual (CPLR 215). This motion would have had to be filed before July 27, 2008 to be timely and it was not. As a result, this portion of the motion is untimely as well.

Movant’s remaining assertion in the notice of intention is that the Defendant committed fraud or Defendant’s conduct was otherwise negligent. The only dates set forth in the notice of intention are the date the medical tests were conducted, March 3, 2001, and the date the action the State brought to collect on an outstanding bill was dismissed. A cause of action for fraud accrues when the fraud was committed or is discovered or could have been discovered with the exercise of reasonable diligence (see Georgiou v Panayia of Mountains Greek Orthodox Monastery, Inc., 16 AD3d 998, 999). An action sounding in negligence accrues when an injury occurs or when all the elements of the tort can be set forth truthfully in a claim (see Snyder v Town Insulation, Inc., 81 NY2d 429, 432; Fleishman v Lilly & Co., 96 AD2d 825, affd 62 NY2d 888, cert denied 469 US 1192). The accrual of these causes of action cannot be calculated based upon the information set forth in the notice of intention. It is Movant’s burden to establish a timely motion pursuant to Court of Claims Act § 10(8) and he has failed to do so (see Nash v State of New York, Ct Cl, Lopez-Summa, J., signed February 13, 2008, Claim No. 112015, Motion Nos. M-74050, CM-74211, CM-74250, CM-74462 [UID # 2008-045-008]); Rosario v State of New York, Ct Cl, Scuccimarra, J., signed May 10, 2005, Claim No. None, Motion No. M-69064 [UID # 2005-030-529]). Nor has Movant set forth sufficient factual allegations for a claim for negligence or fraud.

Accordingly, Movant’s motion for permission to treat the notice of intention as a claim is DENIED.

March 19, 2009
Syracuse, New York

Judge of the Court of Claims

The Court has considered the following documents in deciding this motion:

1. Notice of Motion.
2. Affidavit of Christopher D. Ariola, Pro Se, in support, sworn to November 12, 2008, with attachment thereto.

3. Affirmation of Heather R. Rubinstein, Esquire, Assistant Attorney General, in opposition with exhibits attached thereto.

[1]. Notice of Intention.
[2].Notice of Intention, last paragraph.