Continuous treatment doctrine inapplicable to Claimant's dental malpractice claim. Claim dismissed as untimely. Claimant's motion to "strike affirmative defenses" denied as moot.
|Claimant short name:||JENKINS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Motion number(s):||M-78179, M-78311|
|Judge:||RENÉE FORGENSI MINARIK|
|Claimant's attorney:||FREDDIE JENKINS, PRO SE|
|Defendant's attorney:||HON. ANDREW M. CUOMO
New York State Attorney General
BY: BONNIE GAIL LEVY, ESQ.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 27, 2010|
|See also (multicaptioned case)|
The following papers, numbered 1 to 6, were read on motion by Defendant for dismissal of the claim, and on motion by Claimant to "strike affirmative defenses":
1) Defendant's Notice of Motion (M-78179), filed April 19, 2010;
2) Affirmation of Bonnie Gail Levy, Esq., dated April 16, 2010, with attached exhibits;
3) Claimant's Notice of Motion (M-78311), filed May 24, 2010;
4) Claimant's Affidavit, sworn to May 19, 2010, with attached exhibit;
5) Supplemental Affirmation of Bonnie Gail Levy, Esq., dated June 1, 2010;
6) Filed Documents: Claim.
I have before me Defendant's motion for dismissal of the claim and Claimant's motion in which he seeks to strike certain unidentified affirmative defenses allegedly asserted by Defendant. Defendant's motion, however, was filed in lieu of an answer. Accordingly, there have been no affirmative defenses asserted in this action. It appears that, although Claimant has entitled his submission to the Court a motion to strike affirmative defenses, his submission is actually a response to Defendant's motion to dismiss.
In his claim, filed on March 10, 2010, Mr. Jenkins alleges that on May 27, 2008, he was the victim of dental malpractice. According to the claim, Dr. Epstein, a dentist employed by Defendant at Cayuga Correctional Facility, examined Claimant on April 7, 2008 and determined that he had an infection in "tooth #7" (Claim, par. 2). Claimant was prescribed the antibiotic Clindamycin and scheduled for a root canal. Mr. Jenkins alleges that the root canal, which Dr. Epstein performed on May 27, 2008, was not completed for a reason he describes as "some alleged blockage" (Claim, par. 2). Claimant goes on to allege that Dr. Eptstein "failed to properly seal claimant's tooth at the end of said procedure" (Claim, par. 2). This led to another infection for which Claimant was again prescribed Clindamycin. Claimant alleges that he was in "extreme consistent tooth pain" (Claim, par. 4) between the time of the root canal and June 15, 2009. Although not specifically stated by Claimant, he implies that the root canal was completed on June 15, 2009, and that his symptoms, apparently, thereafter resolved.
With its motion, Defendant seeks dismissal of the claim, asserting that Claimant failed to serve either his claim or a notice of intention to file a claim within 90 days of accrual of his claim, as required by Court of Claims Act § 10(3). Defendant's motion papers demonstrate, and Claimant does not dispute, that a valid notice of intention was first served on August 10, 2009 and that the claim was both filed and served on March 10, 2010.
Pursuant to Court of Claims Act § 10(3), a claim for personal injuries resulting from the negligence or unintentional tort of an agent of Defendant, such as is alleged here, must be filed within 90 days, unless Claimant has served a verified notice of intention to file a claim. As stated above, Claimant did not serve a notice of intention to file a claim, or serve and file his claim within 90 days of the alleged May 27, 2008 malpractice.
Claimant alleges, however, that his treatment for the underlying problem was continuous between the date of the initial attempted root canal and June 15, 2009. Accordingly, he maintains that the statute of limitations was tolled until June 15, 2009 due to the continuous treatment doctrine. Other than this conclusory statement, however, Claimant offers no evidence which would support the application of the continuous treatment doctrine.
CPLR 214-a provides that actions for medical or other malpractice must be commenced within two years and six months of the act, omission or failure complained of "or last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure." In such instances, the running of the statute of limitations is tolled until the date of the last treatment (McDermott v Torre, 56 NY2d 399; Borgia v City of New York, 12 NY2d 151). This toll applies to the filing requirements in the Court of Claims as well (Ogle v State of New York, 142 AD2d 37).
However, it is Claimant's burden to demonstrate the applicability of the continuous treatment doctrine (Blythe v City of New York, 119 AD2d 615). The continuous treatment doctrine does not apply if Claimant cannot establish a continuing course of treatment for the condition underlying his cause of action (Schreiber v Zimmer, 17 AD3d 342).
The record before me fails to indicate any course of treatment whatsoever between the alleged malpractice on May 27, 2008 and June 15, 2009. In fact, the record demonstrates that Claimant was seen by dental professionals at Fishkill and Coxsackie Correctional Facilities on November 5, 2008 and December 3, 2008, respectively, for reasons other than the alleged botched root canal, and during which no mention of the alleged malpractice was made. There is also no mention that Claimant was in pain of any sort at these times. Further, the record indicates that Claimant refused dental treatment at Fishkill Correctional Facility on October 17, 2008.
I find that Claimant has failed to demonstrate any course of treatment relating to the alleged malpractice between May 27, 2008 and June 15, 2009. Accordingly, the continuous treatment doctrine does not toll the statute of limitations in this matter (Young v New York City Health & Hosps. Corp, 91 NY2d 291; Nykorchuck v Henriques, 78 NY2d 255) and the claim must be dismissed as untimely (Finnerty v New York State Thruway Auth., 75 NY2d 721, 722; Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687).
For the reasons set forth above, it is hereby
ORDERED, that Defendant's motion for dismissal of the claim is granted, and Claimant's motion to strike affirmative defenses is denied, as moot.
September 27, 2010
Rochester, New York
RENÉE FORGENSI MINARIK
Judge of the Court of Claims