New York State Court of Claims

New York State Court of Claims

KELLEY v. THE STATE OF NEW YORK, #2009-044-508, Claim No. 104438, Motion Nos. M-75298, CM-75428


Synopsis


Inmate claimant’s motion for summary judgment for medical malpractice/medical negligence denied; defendant’s motion to dismiss portions of the claim as untimely is granted.

Case Information

UID:
2009-044-508
Claimant(s):
ANDRE KELLEY
Claimant short name:
KELLEY
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104438
Motion number(s):
M-75298
Cross-motion number(s):
CM-75428
Judge:
CATHERINE C. SCHAEWE
Claimant’s attorney:
ANDRE KELLEY, Pro se
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Carol A. Cocchiola, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 3, 2009
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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]).[1] The Court 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 timely (id.). 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. at 5). On October 9, 2002, after receiving the Court’s Decision and Order, claimant finally served the Original Claim upon the Attorney General’s Office.[2] 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.[3]

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, 2002,[4] 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 untimely.[5] 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 [1996]; 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.[6]

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 [1973]; 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 Dolmetsch, 246 AD2d 723 [1998]). 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, supra; Rodriguez v State of New York, supra).[7] Because claimant’s 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 [3]). 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 negligence.[8] 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 sites.[9]

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 [2001]; see generally Hoffman v Pelletier, 6 AD3d 889 [2004]; Schuller v Martinelli, 304 AD2d 967 [2003], lv denied 100 NY2d 509 [2003]; Giambona v Stein, 265 AD2d 775, 776 [1999]). 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 [1985]; Ives v Allard Chiropractic Off., 274 AD2d 910, 911 [2000]).

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 [2000]; 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.



February 3, 2009
Binghamton, New York

HON. CATHERINE C. SCHAEWE
Judge of the Court of Claims


The following papers were read on claimant’s motion and defendant’s cross motion:

1) Notice of Motion filed on July 24, 2008; Memorandum of Law dated July 12, 2008; Affidavit of Andre Kelley sworn to on July 7, 2008, and attachments.

2) Notice of Cross Motion filed on August 22, 2008; Affirmation of Carol A. Cocchiola, AAG, dated August 20, 2008.

3) Affidavit of Andre Kelley sworn to on November 2, 2008, in Opposition to Defendant’s Cross Motion, and attached exhibits.

Filed papers: Claim filed on June 18, 2001; Amended Claim filed on October 28, 2002; Verified Answer filed on November 25, 2002; Amended Verified Answer filed on January 6, 2003.


[1]. The Court, citing Ogle v State of New York (142 AD2d 37 [1988]), found that the continuous treatment doctrine did not apply to connect treatment claimant received at Oneida Correctional Facility (Oneida) from August 26, 2000 through May 30, 2001, to the treatment he had previously received at Elmira from August 20, 2000 through August 26, 2000 (Kelley v State of New York, supra).
[2]. Affirmation of Assistant Attorney General (AAG) Carol A. Cocchiola dated Aug. 20, 2008, in Support of Cross Motion, ¶ 4.
[3]. Claimant has also made other motions in this action, none of which are relevant to the resolution of the current motion and cross motion.
[4]. Affirmation of AAG Carol A. Cocchiola dated August 20, 2008, in Support of Cross Motion, ¶ 4.
[5]. Defendant notes that although claimant had agreed to withdraw these causes of action during a conference with the Court held on May 10, 2007, he has failed to execute a stipulation to that effect.
[6]. Moreover, the Notice of Intention served January 8, 2001 clearly could not provide notice of any allegedly wrongful conduct which took place after that date.
[7]. The Original Claim contained allegations concerning claimant’s treatment at Oneida from January 9, 2001 through May 2001. However, because the Notice of Intention did not provide notice of this allegedly wrongful conduct (see n 4, supra), these allegations were not timely asserted in the Original Claim served on October 9, 2002, and are therefore not timely asserted in the Amended Claim.
[8]. Further, there is no indication that an additional Notice of Intention was served after January 8, 2001.
[9]. Claimant also refers to no-fault liability and the payment of no-fault benefits throughout his motion papers. The law concerning both no-fault liability and no-fault benefits pertains to personal injuries received as the result of a motor vehicle accident (see Insurance Law article 51), and has no bearing on this claim for medical malpractice or medical negligence. Claimant’s references to strict liability isare likewise without merit in this action.