New York State Court of Claims

New York State Court of Claims

JOHNSTON v. STATE OF NEW YORK, #2009-018-027, Claim No. 116107, Motion No. M-76122


Defendant’s motion to dismiss is granted without prejudice.

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: Bonnie Gail Levy, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 18, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant brings a motion to dismiss the claim on the grounds that it was not timely

served in accordance with Court of Claims Act § 10. Claimant opposes the motion.

The claim was filed on November 20, 2008, and served upon the Attorney General on November 14, 2008. The claim alleges that on April 4, 2007, Claimant’s little finger on his right hand was crushed when a welded weight broke while Claimant was working out at Cape Vincent Correctional Facility. Claimant alleges that no x-ray was performed on his finger until six months after the incident when he was still suffering from pain. On December 7, 2007, he was told that his knuckle would have to be removed and the joint fused. Claimant served the Attorney General with a notice of intention to file a claim on January 9, 2008.

Defendant, by this motion, argues that Claimant asserts two causes of action, a negligence cause of action for the defective weight and a medical malpractice cause of action for the care and treatment of the injury to his little finger. Defendant argues that the accrual date for the negligence cause of action would have been April 4, 2007, and no notice of intention was served and no claim served and filed within 90 days of that date, or by July 3, 2007, as required by Court of Claims Act § 10. After the injury, Claimant was treated at the infirmary and told that his finger would take four to six months to heal. No follow up appointment was contemplated and Claimant did not return for eight months to have his finger rechecked. Defendant argues that this is not continuous treatment and does not toll the statute of limitations.

Claimant, in response, does not address the timeliness issue of any cause of action for negligence. He does argue that he served a notice of intention within 27 days of learning that he would have to have his knuckle removed. He argues that this was continuous treatment.

A cause of action for personal injuries suffered as a result of a defendant’s negligence accrues at the time of injury (see Barrell v Glen Oaks Vil. Owners Inc., 29 AD3d 612, 613; DiPietro v Feldman-Mondlick, Inc., 6 AD3d 1216, 1217). Here, any cause of action for Defendant’s failure to properly maintain the weight lifting equipment at one of its correctional facilities would have accrued on the date Claimant was injured, April 4, 2007. Since no notice of intention was served and no claim served and filed within 90 days of that date, a cause of action for this alleged negligence is untimely (Court of Claims Act § 10[3]).

Although a medical malpractice action, like any negligence action, would also accrue at the time the injury occurs, there is a statutory tolling if there is continuous treatment

(CPLR 214-a). When there is continuous treatment for the same illness, injury or condition, and the treatment has run continuously including the wrongful acts or omissions, the statute of limitations does not begin to run until the end of the course of treatment (see Nykorchuck v Henriques, 78 NY2d 255, 258; Gomez v Katz, 61 AD3d 108). There are three principle elements of the continuous treatment doctrine: (1) the claimant continued to seek and obtained an actual course of treatment during the relevant time period; (2) the course of treatment must be for the same condition or complaints underlying the medical malpractice claim, and (3) the treatment must be continuous (Gomez, 61 AD3d at 108). “ Course of treatment” requires some affirmative act or ongoing conduct by the physician and involves more than an ongoing physician-patient relationship or continuing efforts to arrive at a diagnosis (Nykorchuck, 78 NY2d at 259; McDermott v Torre, 56 NY2d 399, 406; Marabello v City of New York, 99 AD2d 133, 146). The failure to diagnose a condition also does not toll the statute of limitations (Young v New York City Health & Hospitals, Corp., 91 NY2d 291, 297; Nykorchuck, 78 NY2d at 259).

A review of the records submitted by Claimant reflect that on April 4, 2007, at approximately 9:05 p.m., Claimant reported to the correction officer on duty that a weight bar broke and “pinched his right pinky finger.”[1] Claimant refused medical treatment at that time, and around 10:00 p.m., Claimant did go to the infirmary where swelling and redness of the little finger on his right hand were noted. He was given a finger splint, ice, and ibuprofen, with instructions to return in the morning for an evaluation. He was evaluated by a doctor on April 5, 2007, given a splint, allowed to continue to work, and was to be seen in one week, on April 12, 2007, for a follow-up appointment with a doctor. Claimant was seen again on April 10, 2007. It was noted that he could move the finger and flex the joints. No further appointments were scheduled. Claimant returned to the infirmary on July 4, 2007 for a laceration, and on July 29, 2007, for injuries as the result of an altercation. Claimant’s next complaint relating to his finger was on October 12, 2007. He was diagnosed on October 16, 2007 after an x-ray with a “comminuted intra-articular fracture” with persistent soft tissue swelling.

There is no indication that there was any further treatment of Claimant’s finger after April 10, 2007 until Claimant’s visit on October 12, 2007, although he had other visits to the infirmary. Claimant’s visit on October 12, 2007 was clearly to have his condition checked which is not sufficient to toll the statute of limitations beyond April 10, 2007 (Swift v Colman, 196 AD2d 150, 153).

Accordingly, Defendant’s motion is GRANTED and Claimant’s claim is DISMISSED, without prejudice. Claimant still has time to bring a late claim application pursuant to Court of Claims Act § 10(6) until October 10, 2009.

May 18, 2009
Syracuse, New York

Judge of the Court of Claims

Papers Considered:
  1. Notice of Motion
  2. Affirmation of Bonnie Gail Levy, Esquire, Assistant Attorney General, in support, with exhibits attached thereto.
  1. Reply “affirmation” (affidavit) of Heath Johnston, Pro Se, in opposition, sworn to
December 30, 2008, with exhibits attached thereto.

[1].Claimant’s affidavit, Exhibit A.