On June 18, 2001, claimant, an inmate proceeding pro se, filed Claim No. 104438
(the Original Claim) alleging, inter alia
, medical malpractice and/or
medical negligence in the care he received from defendant State of New York
(defendant) while he was in the custody of the Department of Correctional
Services. Prior to serving the Original Claim upon the Attorney General’s
Office, claimant made motions to amend the claim (Motion No. M-65133), to have
the Notice of Intention treated as a claim (Motion No. M-65290), and to proceed
as a poor person (Motion No. M-65300). Defendant opposed the motions, and
cross-moved to dismiss the claim (Cross Motion No. CM-65245). The Court denied
claimant’s motions, and granted that portion of defendant’s cross
motion which sought dismissal of claimant’s allegations concerning medical
malpractice and medical negligence which occurred at Elmira Correctional
Facility (Elmira) from August 10, 2000 through August 26, 2000 because they were
untimely (Kelley v State of New York,
Ct Cl, July 11, 2002, Lebous, J.,
Claim No. 104438, Motion Nos. M-65133, M-65290, M-65300, Cross Motion No.
CM-65245 [UID # 2002-019-547]).
found that by serving a Notice of Intention to file a claim on January 8, 2001,
claimant had extended the time for filing and serving the claim until January 8,
2003, as it pertained to the medical treatment which took place from August 26,
2000 through January 8, 2001 at Oneida, and that those allegations were thus
). However, the Court also noted that by serving the Notice
of Intention, claimant “cut off the toll of the accrual date under the
continuous treatment doctrine” as of January 8, 2001 (id.
On October 9, 2002, after receiving the Court’s Decision and Order,
claimant finally served the Original Claim upon the Attorney General’s
Defendant answered and asserted
several affirmative defenses.
Claimant thereafter filed and served an amended claim (the Amended Claim).
Defendant answered the Amended Claim, and again asserted several affirmative
defenses. Claimant now moves for summary judgment. Defendant opposes the
motion, and cross-moves to dismiss portions of the amended claim. Claimant
opposes the cross motion.
Defendant’s cross motion is potentially dispositive of a portion of the
claim, and therefore it will be addressed first. The Amended Claim, filed on
October 28, 2002 and served on November 29,
includes the allegations contained in
the Original Claim concerning medical treatment both at Elmira from August 10,
2000 through August 26, 2000, and at Oneida from August 27, 2000 through May
2001, as well as allegations concerning treatment which occurred at Oneida from
November 2001 through June 2002. The Amended Claim also asserts that
defendant’s “[d]eliberate indifference to [claimant’s] serious
illness or injury constitules [sic] ‘[u]nnecessary and wanton infliction
of pain’ . . . and, therefore, states a cause of action under §
1983” (Amended Claim, p 2).
Defendant asserts that the allegations concerning claimant’s treatment at
Elmira were previously dismissed as untimely, and should not be included in the
Amended Claim. Defendant further contends that because the Amended Claim was
not served until November 29, 2002, the allegations concerning treatment which
occurred after January 8, 2001 are also
Defendant also argues that the
Court of Claims lacks subject matter jurisdiction over claimant’s cause of
action for violation of 42 USC 1983.
Claimant acknowledges that the allegations concerning his medical care at
Elmira were previously dismissed, and that he cannot recover for such in the
Amended Claim. Claimant also concedes that the Court of Claims does not have
subject matter jurisdiction over his cause of action asserting a violation of 42
USC 1983. Consequently, any cause of action based upon allegations of negligent
medical treatment while claimant was incarcerated at Elmira from August 10, 2000
through August 26, 2000, and the cause of action for violation of 42 USC
§ 1983, are hereby both dismissed (see Brown v State of New York, 89
NY2d 172, 184 ; Kelley v State of New York, supra).
However, claimant contends that based upon the continuous treatment doctrine,
the Court retains jurisdiction over the remaining allegations of the Amended
Claim, specifically those which concern treatment that took place at Oneida
after January 8, 2001. This contention is without merit. As the Court held in
its prior Decision and Order, once claimant served the Notice of Intention, he
“cut off” the toll for the continuous treatment doctrine for
allegations of malpractice or negligence which occurred prior to that time.
Claimant, by serving the Notice of Intention on January 8, 2001, was allowed an
additional two years in which to serve the Original Claim. Nevertheless, his
“ability to rely on any continuous treatment . . . ended
upon his service of [the] Notice of Intention on [that date]” (id.
at 5). The allegations concerning claimant’s medical care after January
8, 2001 are therefore not considered part of his treatment which commenced on
August 27, 2000.
Further, claimant’s amendment of the claim as of right, pursuant to the
Uniform Rules for the Court of Claims (22 NYCRR) § 206.7 (b), does not
render the allegations concerning claimant’s treatment from January 9,
2001 through June 2002 timely. It is well settled that allegations in an
amended pleading which appear untimely on their face may indeed be timely
asserted, if they relate back to the allegations contained in the original
pleading (see e.g. Marsala v State of New York,
41 AD2d 878 ;
Rodriguez v State of New York,
Ct Cl, June 26, 2007, Collins, J., Claim
No. 113166, Motion No. M-73019 [UID # 2007-015-203]; cf. Marpe v
246 AD2d 723 ). However, in order to relate back to the
original allegations, the additional allegations must be part of the same
transaction or occurrence or series of transactions or occurrences of which the
original pleading gave notice (see e.g. Marsala v State of New York,
; Rodriguez v State of New York,
treatment after January 8, 2001 is separate and distinct from the treatment he
received prior to that date, the additional allegations in the Amended Claim do
not relate back to those contained in the Original Claim. Therefore, in order
for a cause of action based upon the additional allegations to be timely, a
claim must have been filed and served or a notice of intention must have been
served within 90 days after its accrual (Court of Claims Act § 10 ). As
noted previously in this Decision and Order, the Amended Claim was filed on
October 28, 2002, and served on November 29, 2002, both of which are clearly
more than 90 days after the last alleged instance of malpractice or
Accordingly, the Amended Claim is
untimely with respect to treatment occurring after January 8, 2001, and any
cause of action based upon these allegations is also dismissed.
The Court will now address claimant’s motion for summary judgment.
Claimant argues that because defendant has failed to deny the allegations of
negligent care, there is no valid defense to his negligence cause of action.
Claimant asserts that because of the allegedly negligent medical treatment he
received while in custody, he was forced to suffer the amputation of several
fingers and toes, as well as endure gangrenous infections at these amputation
Conversely, defendant claims that claimant’s uncertified medical records
are inadmissible, and thus do not provide evidentiary support for this summary
judgment motion. Defendant also argues that claimant’s failure to set
forth an expert affidavit to establish a deviation from the accepted standard of
care is fatal to this motion.
In a cause of action for medical malpractice, the claimant, as moving party,
must establish the applicable standard of care to which professionals must
adhere in the relevant community, that the defendant deviated from that standard
of care, and that such deviation caused the claimant’s injury (see
Toomey v Adirondack Surgical Assoc., 280 AD2d 754 ; see generally
Hoffman v Pelletier, 6 AD3d 889 ; Schuller v Martinelli, 304
AD2d 967 , lv denied 100 NY2d 509 ; Giambona v Stein,
265 AD2d 775, 776 ). If the movant fails to meet his or her initial
burden, however, the motion must be denied, regardless of the sufficiency of the
opposing papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324;
Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 ; Ives v
Allard Chiropractic Off., 274 AD2d 910, 911 ).
In support of this motion, claimant has provided his affidavit, and copies of a
portion of his ambulatory health record, as well as a consultation report and a
hospitalization discharge summary. However, as defendant correctly notes, none
of the medical records are certified. The uncertified and unsworn medical
records – which are hearsay – are clearly inadmissible, and thus not
properly considered on claimant’s motion (Joseph E.G. v East
Irondequoit Cent. School Dist., 273 AD2d 835, 836 ; Green v State
of New York, Ct Cl, Sept. 26, 2005, Lebous, J., Claim No. 109512, Motion No.
M-70591 [UID # 2005-019-572]). Further, claimant has failed to submit expert
opinion evidence to establish the relevant standard of care, defendant’s
alleged deviation therefrom, and that such deviation caused or contributed to
his injuries. The lack of expert evidence in this case is also fatal to
claimant’s motion (see Hoffman v Pelletier, supra; Schuller v
Martinelli, supra). Accordingly, claimant’s motion for summary
judgment is denied.
In conclusion, defendant’s cross motion is granted to the extent that any
causes of action set forth in the Amended Claim which are based upon the
allegations concerning claimant’s medical treatment at Elmira from August
10, 2000 through August 26, 2000, and at Oneida from January 9, 2001 through
June 2002, as well as the cause of action alleging a violation of 42 USC §
1983, are hereby dismissed. Claimant’s motion for summary judgment is
denied in its entirety.