Motion for late claim relief denied as untimely. Motion papers did not demonstrate that continued dental treatment qualified as "continuous treatment" sufficient to toll the statue of limitations, and motion pursuant to Court of Claims Act § 10 (6) was filed after the applicable statue of limitations expired.
|Claimant short name:||DOZIER|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||STOLL, GLICKMAN & BELLINA, LLP
By: Andrew Stoll, Esq.
|Defendant's attorney:||ERIC T. SCHNEIDERMAN, Attorney General
of the State of New York
By: Joan Matalavage, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 11, 2017|
|See also (multicaptioned case)|
Claimant, an individual incarcerated in a State correctional facility, moves pursuant to Court of Claims Act § 10 (6) for permission to file and serve a late claim alleging that defendant's agents committed dental malpractice between August 3, 2010 and December 22, 2014. Defendant opposes the motion on the ground that it was brought after the expiration of the statute of limitations. Claimant has submitted papers in reply.
The proposed claim alleges the following. Beginning on or about August 3, 2010 claimant began to receive dental treatment from Dr. Tahir Farooki at Clinton Correctional Facility (CF), and on January 28, 2013, claimant was seen by Dr. Farooki for a dental abscess. According to the proposed claim, Dr. Farooki failed to order sufficient diagnostic testing or otherwise determine whether claimant had an infection (see Stoll Affirmation, Exhibit A [Proposed Claim, at ¶¶ 12-19). Claimant did not receive any further dental treatment until September 11, 2013, when he was seen by Dr. R. Oliveira "who noted [claimant's] worsening dental health and ordered certain procedures to attempt to treat the condition" (id., ¶ 21). Dr. Oliveira saw claimant again on November 4, 2013 and referred claimant for a surgical consultation at Westchester Medical Center, where he had eight teeth removed on an unspecified date (see id., at ¶¶ 20-23). Following his hospitalization and his return to Clinton CF, Dr. Farooki saw claimant for post-surgical care on March 18, April 14, May 15, July 24 and September 8, November 12 and December 22, 2014 (see id., at ¶ 26).
The threshold question on this motion seeking late claim relief is whether it was filed "before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules" (Court of Claims Act § 10 ). The failure to file the late claim motion within the prescribed time period is a jurisdictional defect which precludes the Court from considering such a motion (see Matter of Miller v State of New York, 283 AD2d 830, 831 [3d Dept 2001]; Bergmann v State of New York, 281 AD2d 731, 733-734 [3d Dept 2001]; Williams v State of New York, 235 AD2d 776, 777 [3d Dept 1997], lv denied 90 NY2d 806 ). "A dental malpractice claim generally accrues on the date of the alleged wrongful act or omission, and is governed by a 2 ½ year Statute of Limitations (see, CPLR 214-a)" Leifer v Parikh, 292 AD2d 426, 427 [2d Dept 2002]). The proposed claim alleges that Dr. Farooki failed to adequately treat claimant on January 28, 2013, and thus, the statute of limitations expired on July 28, 2015, unless it was tolled by the continuous treatment doctrine. This late claim motion was filed on April 28, 2017, well beyond the statute of limitations, and accordingly, the motion can be considered only if the facts alleged by claimant satisfy the continuous treatment doctrine.
The continuous treatment doctrine tolls the statute of limitations "until the end of a course of treatment when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint" (Johanson v Sullivan, 68 AD3d 1303, 1304 [3d Dept 2009] [internal quotation marks and citations omitted]). To invoke the continuous treatment toll, claimant must have instigated a timely return visit to seek treatment for the same condition for which he was allegedly improperly treated (see McDermott v Torre, 56 NY2d 399, 406 ). The instructive questions here are thus whether claimant received continuous care for the dental abscess, and if so, the date on which that treatment ceased.
The proposed claim does not allege that claimant sought or received any dental treatment from the date of the alleged malpractice on January 28, 2013 until September 11, 2013, when he was seen by Dr. Oliveira. Claimant argues that continuous treatment of his condition was provided by Dr. Oliveira on that date and on November 4, 2013, and that Dr. Farooki provided post-surgical care on several dates continuing until at least December 22, 2014. However, claimant first attempted to file a claim and initiate legal proceedings concerning the alleged malpractice on November 5, 2014, at which time the physician-patient relationship was severed and any continuous treatment toll expired (Stoll Affirmation, ¶¶ 29-30; see O'Connor v State of New York, 15 AD3d 827, 828 [3d Dept 2005], lv denied 5 NY3d 702 ).(1) Claimant argues that the instant motion was filed less than two and one-half years after its November 5, 2014 accrual date, it is therefore timely (see Stoll Affirmation, ¶ 32). Defendant counters that the continuous care doctrine is inapplicable to claims alleging deprivation of medical care, and as the proposed claim alleges that defendant's agents failed to treat claimant from January 28, 2013 through September 11, 2013, the continuous care doctrine does not apply and the statute of limitations bars this claim (Matalavage Affidavit, ¶ 8). Defendant's argument is unpersuasive because the proposed claim clearly alleges that Dr. Farooki failed to provide appropriate care, not that defendant deprived claimant of care, and thus the continuous treatment doctrine is not inapplicable. However, the facts of this claim do not satisfy the continuous treatment doctrine.
As an initial matter, the documents submitted on the motion do not reveal whether claimant's first visit with Dr. Oliveira, which was more than seven months after Dr. Farooki's alleged malpractice on or about January 28, 2013, was a timely return visit (see Mc Dermott v Torre, 56 NY2d at 496), or that the visit with Dr. Oliveira was instigated by claimant for the purpose of complaining about and seeking treatment for the abscess and infection that were allegedly mistreated by Dr. Farooki (see id.) The proposed claim alleges that on September 11, 2013, Dr. Oliveira "noted" [claimant's] worsening dental health and ordered certain procedures to attempt to treat the condition" (Stoll Affirmation, Exhibit A [Proposed Claim, at ¶ 21]). The medical record from the September 11 visit lacks any indicia that the purpose of the visit was to address an abscess or infection or that claimant was complaining of any such condition. (see id., Exhibit B [9/11/13 Dental Treatment Record Note]). In sum, there is nothing in the record that demonstrates that the visit was anything other than a routine or periodic health examination which would not qualify as continuing treatment for purposes of the continuous treatment toll (see Young v New York City Health & Hosps. Corp., 91 NY2d 291, 296 ). Further, the claim alleges that the care provided by Dr. Farooki after the surgery was for "follow-up care for the dental surgery performed on [claimant]" (Proposed Claim, ¶ 26), and was not a continuation of the care he provided in January 2013. Thus, because the motion for late claim relief was not filed prior to July 28, 2015, the claim is time-barred under the CPLR § 214 - a statute of limitations, and the Court lacks jurisdiction over the motion for late claim relief.
Accordingly, it is
ORDERED, that claimant's motion number M-90329 is DENIED.
September 11, 2017
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Notice of Motion for Leave to File Late Claim, dated April 26, 2017;
2. Affirmation of Andrew Stoll, Esq., in Support of Motion for Leave to File Late Claim, dated April 26, 2017, with Exhibits A-G;
3. Affidavit of Joan Matalavage, AAG, in Opposition, sworn to May 30, 2017, with Exhibits 1-5;
4. Reply Affirmation of Andrew Stoll, Esq., in Further Support of Motion for Leave to File Late Claim, dated June 6, 2017.
1. Claimant argues that he instituted the claim on November 5, 2014, but the claim was not received by the Office of the Attorney General until November 6, 2014 (see Matalavage Affidavit, Exhibit 1). The records of the Clerk of the Court of Claims do not reveal that the claim was ever filed with the Clerk.