|Claimant(s):||CRAIG STEVEN ROSE|
|Claimant short name:||ROSE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Motion number(s):||M-78374, M-78375, M-78376|
|Judge:||James J. Lack|
|Claimant's attorney:||Craig Steven Rose, Pro Se|
|Defendant's attorney:||Andrew M. Cuomo, New York State Attorney General
By: Belinda A. Wagner, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 24, 2010|
|See also (multicaptioned case)|
This is a claim by Craig Steven Rose (hereinafter "claimant") for injuries due to the alleged medical malpractice of defendant. The medical malpractice began shortly after August 2, 2007, when claimant injured his shoulder and knees and was remanded to the custody of defendant. Claimant alleges insufficient medical treatment at various state correctional facilities he has been transferred to during his incarceration.
Claimant has filed three motions(1) . The first motion, M-78374, is an affidavit in reply to defendant's answer. This has been treated as a motion to strike defendant's affirmative defenses. Claimant's next motion, M-78375, is to withdraw a cause of action and reduce the damages alleged. Claimant's last motion, M-78376, is for an order extending the law library hours of the correctional facility and an advance of money for copies.
Defendant submits a cross-motion to dismiss the claim as untimely(2) . Defendant argues claimant filed a grievance in this matter on November 16, 2009, thereby beginning "legal process" and severing the doctor/patient relationship qualifying for a continuing course of treatment. Defendant's argument anticipates any claim or notice of intention would then need to be served and filed by February 14, 2010. Claimant served a notice of intention on March 24, 2010 and served his claim on April 14, 2010. The claim was filed on April 22, 2010.
In opposition to defendant's cross-motion, claimant argues he was treated beyond the date of the grievance and thus, the claim is timely because of the continuing course of treatment.
In O'Connor v State of New York (15 AD3d 827), the court dealt with a similar issue in regard to an inmate's claim of dental malpractice. The court held
the initiation of legal process by the filing of a notice of intention to file a claim "clearly sever[s] any continuing relationship of trust in the physician-patient relationship and end[s] any 'continuous treatment tolling' at that point" (Toxey v State of New York, 279 AD2d 927, 929, lv denied 96 NY2d 711, ). Even though claimant had no choice but to submit to treatment by facility dentists during his continued period of incarceration, his unequivocal act of signaling legal proceedings by the filing of the notice of intention to file a claim sufficiently memorializes the end of confidence in his course of treatment such that his claim should have been timely filed thereafter (see Schloss v Albany Med. Ctr., 278 AD2d 614, 615 , lv denied 96 NY2d 707 ).
The distinction between these cases is defendant's argument in the instant matter that claimant began the legal process by the filing of a grievance. In Garofolo v State of New York (UID # 2009-044-577, Schaewe, J., December 18, 2009, Claim No.115577, M-77222), the Court of Claims was faced with the same circumstances as present in the instant claim. As noted, the difficulty with a prisoner's medical care is the prisoner may not choose his medical provider, unless he has the means to pay for an outside doctor to treat him. Otherwise, a prisoner must continue the medical treatment provided to him by defendant. In Garofolo, the Court held "filing of the Grievance, which related to treatment concerning the specific medical condition as alleged in both the Notice of Intention and the claim, clearly established the end of claimant's trust and confidence in his course of treatment such that the Notice of Intention should have been timely served or the claim timely filed and served thereafter (Mejia v State of New York, supra; Watson v State of New York, Ct Cl, Hard, J., June 19, 2006, Claim No. 111107, M-71496 [UID # 2006-032-052])."
The Court agrees with its colleague. An inmate has every right to file a grievance to express his dissatisfaction of the medical treatment he is receiving. By filing the grievance he may be able to influence or change the course of his treatment. However, the filing of the grievance clearly signals an end to claimant's confidence in the medical treatment provided.
Therefore, claimant should have served a notice of intention or claim by February 14, 2010. Claimant did not serve a notice of intention until March 24, 2010, over a month beyond the 90 days to serve the notice of intention.
Based upon the foregoing, defendant's cross-motion to dismiss the claim as untimely is granted. Claimant's motions are denied as moot.
September 24, 2010
Hauppauge, New York
James J. Lack
Judge of the Court of Claims
1. The following papers have been read and considered on claimant's motions: Notice of Motion to Answer Defendants [sic] Verified Answer undated and filed June 2, 2010; Affidavit in Support of Answer to Defendants [sic] Verified Answer of Craig Steven Rose with annexed Exhibits A-F sworn to May 27, 2010 and filed June 2, 2010; Notice of Motion to Correct C.P.L.R. § 405 to Withdraw Specific Cause of Action Claims From Complaint undated and filed June 2, 2010; Affirmation to Correct Complaint Pursuant to C.P.L.R. § 405 of Craig Steven Rose sworn to May 25, 2010 and filed June 2, 2010; Notice of Motion for Special Order undated and filed June 2, 2010; Affidavit in Support of Motion for Special Orders of Craig Steven Rose sworn to May 25, 2010 and filed June 2, 2010.
2. The following papers have been read and considered on defendant's cross-motion: Notice of Cross-Motion dated July 7, 2010 and filed July 8, 2010; Affirmation in Support of Belinda A. Wagner, Esq. with annexed Exhibits A-D dated July 7, 2010 and filed July 8, 2010.