Defendant brings a motion to dismiss the claim on the grounds that it was not
served in accordance with Court of Claims Act § 10. Claimant opposes the
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).
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
(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
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.