|Claimant short name:||OYAGUE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The caption has been amended to reflect that the sole properly named defendant is the State of New York.|
|Motion number(s):||M-77689, M-77690|
|Judge:||Alan C. Marin|
|Claimant's attorney:||Ralph Oyague, Pro Se|
|Defendant's attorney:||Andrew M. Cuomo, Attorney General
By: James E. Shoemaker, AAG
|Third-party defendant's attorney:|
|Signature date:||April 26, 2010|
|See also (multicaptioned case)|
Defendant moves to dismiss the claim of Ralph Oyague on the grounds of res judicata, untimeliness, and failure to state a cause of action. For his part, Mr. Oyague moves to strike certain of the State's affirmative defenses.
Oyague's claim stems from an incident in the spring of 2005, when he injured his right knee while running a race at Sullivan Correctional Facility. Claimant alleges that thereafter, surgery on the knee was negligently performed on June 22, 2007. Specifically, Oyague maintains that during the operation, the surgeon "negligently left two . . . tears unattended . . ." Claimant contends that because of this, he was required to undergo a second surgery on May 18, 2009 to repair the two tears neglected in the first surgery.
The relevant procedural history is as follows. On June 16, 2008, claimant served a notice of intention to file a claim complaining of the June 22, 2007 surgery. Thereafter, he served a claim, which was assigned claim no. 116144. That claim was dismissed in a Decision and Order dated June 1, 2009 on the ground that the Court lacked jurisdiction because the claim had been improperly served by regular mail. In the same Decision and Order, claimant's motion for permission to file a late claim pursuant to §10.6 of the Court of Claims Act (the "Act") was denied.
On August 6, 2009, claimant served another notice of intention, alleging that he had been required to undergo a second surgery on May 18, 2009 to correct the earlier June 22, 2007 surgery. That notice of intention was rejected and returned to claimant by defendant on the ground that it was a nullity as it was not verified. Claimant then attached a verification and re-served the notice of intention on August 24, 2009. Oyague thereafter served and filed the instant claim (no. 117462) on September 30, 2009.* * *
To the extent that defendant cites the doctrine of res judicata in connection with the Court's Decision and Order dismissing claim no. 116144, such doctrine is inapplicable here because such earlier claim was not dismissed on the merits, but rather because it had been improperly served by regular mail. See, e.g., Maitland v Trojan Electric & Machine Co., Inc., 65 NY2d 614 (1985).
With regard to timeliness, although claimant did not serve his initial notice of intention within 90 days of the June 22, 2007 surgery, he argues that it was timely because of the doctrine of continuous treatment. In that regard, he has submitted evidence sufficient to raise a triable issue of fact that he was continuously treated following the initial surgery until at least April 29, 2008.(2) See exhibit B to claimant's moving papers. His initial notice of intention was served on June 16, 2008, i.e., within 90 days of April 29, 2008.
Oyague's service of a notice of intention on June 16, 2008 "ended any 'continuous treatment tolling' at that point." Toxey v State of New York, 279 AD2d 927, 929 (3d Dept 2001) (internal citations omitted). However, he thereafter had two years within which to serve and file his claim. See §10.3 of the Act and Bell v State of New York, Ct Cl, March 27, 2007 (unreported, claim no. 112564, motion nos. M-72275, M-72378 and CM-72633, UID #2007-009-009(3) , Midey, J.). Oyague's service and filing of claim no. 117462 on September 30, 2009 was clearly within such two year period.
Defendant also argues that Oyague's claim fails to state a cause of action because it does not comply with §11.b of the Act, which essentially requires that a claim such as this state the time when and place where it arose, the nature of same, and the items of damage or injuries claimed to have been sustained. Defendant points to no particular deficiencies in the claim, and having reviewed it, I find that it sufficiently states the items required by §11.b of the Act.
Turning to claimant's application, he moves to strike the State's first through fifth and seventh through ninth affirmative defenses. The first through third affirmative defenses relate to timeliness. In view of the Court's finding that issues of fact remain as to continuous treatment, it would be inappropriate to strike these defenses at this time. The fourth and fifth affirmative defenses allege that the claim fails to comply with §11 of the Act. In view of the Court's finding that the claim is in fact compliant with such section, these defenses should be stricken. The remaining defenses, i.e., the seventh through ninth, do not have jurisdictional implications, and thus their striking would not generally be warranted in the absence of a showing of prejudice by the claimant. See, e.g., 5 Weinstein-Korn-Miller, NY Civ Prac ¶3018.14 at 30-432. No such showing has been made here.
In view of the foregoing, having reviewed the submissions(4) , IT IS ORDERED that motion no. M-77689 be denied. IT IS FURTHER ORDERED that motion no. M-77690 be granted only to the extent that the State's fourth and fifth affirmative defenses shall be deemed stricken, and such motion shall otherwise be denied.
April 26, 2010
New York, New York
Alan C. Marin
Judge of the Court of Claims
2. In the Decision and Order dismissing Oyague's prior claim (no. 116144), the Court stated in footnote 2 that "[i]t also appears that Oyague's claim was untimely such that the court lacks jurisdiction per §10.3 of the Act which requires that either a notice of intention or claim be served within 90 days of accrual. As set forth above, Oyague alleges that he was injured in May 2005 and had surgery on June 22, 2007; he did not serve his notice of intention until June 16, 2008." It should be noted that in connection with that motion practice, continuous treatment was not raised, and in any event, the Court's statement is dicta as the claim was dismissed on the ground that it was served by regular mail; defendant did not argue on the prior motion that the notice of intention was untimely.
3. This and other decisions of the Court of Claims may be found on the Court's website: www.nyscourtofclaims.state.ny.us.
4. The following were reviewed: defendant's notice of motion no. M-77689 with affirmation in support and exhibits A through F; claimant's submission on motion no. M-77690, entitled "Affidavit/Motion in Response to Verified Answer for Claim No. 117462" with exhibits A and B; defendant's affirmation dated February 9, 2010 and filed February 11, 2010, with exhibits A and B; and claimant's "Response to 2nd Affirmation."