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New York State Court of Claims

New York State Court of Claims
D.G. v. THE STATE OF NEW YORK, # 2020-038-517, Claim No. None, Motion No. M-94382

Synopsis

Claimant's motion to treat a notice of intention to file a claim as the claim denied as untimely.

Case information

UID: 2020-038-517
Claimant(s): D.G.(1)
Claimant short name: D.G.
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): None
Motion number(s): M-94382
Cross-motion number(s):
Judge: W. BROOKS DeBOW
Claimant's attorney: D.G., Pro se
Defendant's attorney: LETITIA JAMES, Attorney General
of the State of New York
By: Belinda A. Wagner, Assistant Attorney General
Third-party defendant's attorney:
Signature date: February 13, 2020
City: Saratoga Springs
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant, an individual incarcerated in a State correctional facility, moves for permission to treat a notice of intention to file a claim as the claim. Defendant opposes the motion.

The notice of intention that claimant seeks to have treated as the claim was served on the Attorney General on May 19, 2014 (see Wagner Affirmation, Exhibit A; see also D.G. Affidavit, Notice of Intention to File Claim, sworn to May 14, 2014). It alleges that claimant was assaulted by four correction officers (COs) on March 15, 2010 at Clinton Correctional Facility (CF) and, in reliance on the continuous treatment doctrine, that defendant's agents failed to treat his resulting injuries (see id.).

In support of his motion, claimant argues that his notice of intention should be treated as the claim because the conditions of his incarceration prevented him from timely filing a claim, the State had notice of the essential facts of the claim, his claim is meritorious, his failure to timely file a claim did not prejudice the State, no other State remedies are available to him, and the statute of limitations as to the March 15, 2010 assault has not yet lapsed (see D.G. Affidavit, 2-7).(2) Defendant opposes the motion on the grounds that the notice of intention was untimely as to the alleged assault and, although the notice of intention was timely as to the alleged medical malpractice, the motion was untimely because it was brought after the statute of limitations for such a cause of action had expired (see Wagner Affirmation, 4-5, 7).

Court of Claims Act 8 (a) provides that "[a] claimant who timely serves a notice of intention but who fails to timely serve or file a claim may, nevertheless, apply to the court for permission to treat the notice of intention as a claim." A motion to treat a notice of intention as a claim must be made "before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the [CPLR]" (id.; see Gibson v Roswell Park Cancer Institute Corp., 21 Misc 3d 638, 640-641 [Ct Cl 2008]). The Court lacks jurisdiction to grant a motion to treat a notice of intention as the claim where the proposed claimant has failed to file the motion within the prescribed time period (see Critton v State of New York, 12 AD3d 216, 216 [1st Dept 2004]; Maendel v State of New York, 178 Misc 2d 297, 299 [Ct Cl 1998]).

Defendant is correct that the notice of intention is untimely with respect to the alleged assault. A notice of intention to file a claim for personal injuries caused by the intentional tort of an agent of the State must be served on the Attorney General within 90 days of the accrual of the cause of action (see Court of Claims Act 10 [3-b]). According to the notice of intention, claimant's cause of action sounding in assault allegedly accrued on March 15, 2010 (see Wagner Affirmation, Exhibit A [Notice of Intention to File Claim, unnumbered paragraph 5]), but the notice of intention was not served on the Attorney General until May 19, 2014 (see id.), significantly more than 90 days after the cause of action accrued. Because the notice of intention was untimely with respect to claimant's assault cause of action, his motion to treat the notice of intention as the claim must be denied (see Tulger Const. Co. v State of New York, 45 Misc 3d 1224[A], 2013 NY Slip Op 52332[U], *3 [Ct Cl 2013] ["Claimant's request to treat its notices of intention as a claim must be denied because the notices were not timely served"]).(3)

Turning to the cause of action alleging medical malpractice, a notice of intention to file a claim against the State sounding in negligence must also be served on the Attorney General within 90 days of the claim's accrual (see Court of Claims Act 10 [3]). Here, claimant alleges that defendant's agents at Clinton CF failed to treat the injuries he sustained as a result of the March 15, 2010 assault, and he invokes the continuous treatment doctrine. The last date of treatment referred to in the notice of intention is April 29, 2014 (see Wagner Affirmation in Opposition, Exhibit A [Notice of Intention to File Claim, unnumbered paragraph 14]), and, based on that date, claimant would have had to serve the Attorney General with the notice of claim no later than July 28, 2014. As noted above, the notice of intention was served on the Attorney General on May 19, 2014, and thus it was timely.

However, as defendant correctly argues, the instant motion seeking to treat the notice of intention as the claim is not timely. "An action for medical . . . 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" (CPLR 214-a). As noted above, claimant alleges in the notice of intention that defendant's agents at Clinton CF failed to treat the injuries that resulted from the alleged assault on March 15, 2010 and that the last date of treatment was April 29, 2014. Based on that date and the application of the continuous treatment doctrine, claimant would have had to file and serve the instant motion no later than October 31, 2016.(4) However, the instant motion seeking to treat the notice of intention as the claim is not timely inasmuch as claimant did not file it until July 30, 2019, and he did not serve it on the Attorney General until July 22, 2019. Because this motion was filed and served well past the expiration date of the statute of limitations as set forth in CPLR 214-a, the Court lacks jurisdiction to grant the relief sought. The result would be no different were the Court to construe claimant's second cause of action as one sounding in medical negligence, which is subject to a three-year statute of limitations (see CPLR 214; see also Scott v Uljanov, 74 NY2d 673, 674-675 [1989]). Again, based on the last date of treatment alleged in the notice of intention, claimant would have had to file and serve the instant motion no later than May 1, 2017(5) and, as noted above, this motion was not filed and served until July 2019.

Finally, to the extent that the notice of intention can be construed as asserting a cause of action alleging a violation of claimant's right to be free from cruel and unusual punishment under the State constitution, the motion would likewise fail. The statute of limitations for a state constitutional tort is three years under CPLR 214 (5) (see Weimer v Lake, 268 AD2d 741, 742 [3d Dept 2000], lv denied 95 NY2d 755 [2000]), and claimant was therefore required to have filed this motion no later than March 15, 2013 for any violation arising from the assault, or no later than May 1, 2017(6) for any violations arising from the denial of medical care.

Accordingly, it is

ORDERED, that claimant's motion number M-94382 is DENIED.

February 13, 2020

Saratoga Springs, New York

W. BROOKS DeBOW

Judge of the Court of Claims

Papers considered:

1. Notice of Motion, dated July 22, 2019;

2. Affidavit of D.G. in Support of Motion for Treatment of Notice of Intention as Claim, sworn to July 22, 2019, with unenumerated exhibits, including Notice of Intention to File Claim, sworn to May 14, 2014;

3. Affirmation of Belinda A. Wagner, AAG, in Opposition, dated August 28, 2019, with Exhibit A;

4. Correspondence of Kimberley Broad, Principal Law Clerk, dated December 17, 2019;

5. Correspondence of Belinda A. Wagner, AAG, dated January 21, 2020;

6. Correspondence of D.G., dated February 3, 2020.


1. Because claimant alleges in his affidavit in support of this motion that he was the victim of a sexual assault as defined in Article 130 of the Penal Law, the caption of the claim has been amended in accordance with Civil Rights Law 50-b (1). In response to an inquiry from chambers (see Broad Correspondence, dated December 17, 2019), claimant states that he wishes to avail himself of the protections of Civil Rights Law 50-b (1) (see D.G. Correspondence, dated February 3, 2020). Defense counsel's objections that those confidentiality protections do not apply here because the allegations of sexual abuse are not in the notice of intention at issue here and because there has been no "finding" that claimant is a victim of sexual abuse (see Wagner Correspondence, dated January 21, 2020) are unavailing inasmuch as Civil Rights Law 50-b, by its own terms, applies to any "report, paper, picture, photograph, court file, or other documents, in the custody or possession of any public officer or employee," and there is no requirement that there be a legal determination that an individual is a victim of a sexual assault in order for the protections of Civil Rights Law 50-b to apply (see e.g. A.S. v State of New York, UID No. 2017-038-546 [Ct Cl, DeBow, J., June 29, 2017 [applying confidentiality protection of Civil Rights Law 50-b (1) where claimant was allegedly the victim of a sexual assault]).

2. As defendant notes in its opposition, claimant moves to treat the notice of intention as a claim but mistakenly cites to Court of Claims Act 10 (6), which governs motions for late claim relief, rather than to Court of Claims Act 10 (8), which governs motions to treat a notice of intention as a claim (see Wagner Affirmation, 2). Claimant appears to have mistakenly relied upon the wrong statutory provision inasmuch as his submission clearly states that it is a motion "for an order . . . granting [him] permission for treatment of NOTICE OF INTENTION AS CLAIM" (see Notice of Motion, dated July 22, 2019; see D.G. Affidavit in Support of Motion for Treatment of Notice of Intention as Claim, 1 [stating that affidavit is "in support for permission for treatment of NOTICE OF INTENTION AS A CLAIM"]) but the substance of his argument is addressed to the statutory factors governing late claim relief (see D.G. Affidavit in Support of Motion for Treatment of Notice of Intention as Claim, 2-6; see also Court of Claims Act 10 [6]). Because the relief claimant seeks is treatment of his notice of intention as the claim, the Court will evaluate his motion as such. In any event, even if the Court were to address claimant's motion as one for late claim relief, the motion would be denied inasmuch as claimant has failed to attach a proposed claim to his moving papers (see Davis v State of New York, 28 AD2d 609 [3d Dept 1967]; Di Bacco v State of New York, 57 Misc 2d 832, 834 [Ct Cl 1968]; Thompson v State of New York, UID No. 2008-044-577 [Ct Cl, Schaewe, J., Sept. 9, 2008]). Further, even if the Court were to treat the notice of intention that was appended to claimant's papers as a proposed claim, the motion would be denied, as it was brought after the expiration of the applicable statutes of limitations for the causes of action asserted therein, as discussed in greater detail below (see Matter of Miller v State of New York, 283 AD2d 830, 831 [3d Dept 2001] ["the expiration of any possible Statute of Limitations applicable to the (proposed) claim precluded the court from granting the motion"]).

3. The Court notes that even if claimant had timely served the notice of intention with respect to this cause of action, the Court would lack jurisdiction to grant claimant's motion to treat the notice of intention as the claim because the motion was filed and served in July 2019, well past the expiration of the one-year statute of limitations for the cause of action based on the alleged assault, which accrued on March 15, 2010 (see CPLR 215 [3]; Court of Claims Act 8).

4. Two years and six months from April 29, 2014 fell on Saturday, October 29, 2016. Accordingly, claimant's time to file and serve the instant motion was extended to Monday, October 31, 2016 by operation of state law (see General Construction Law 25-a [1]).

5. Three years from April 29, 2014 fell on Saturday, April 29, 2017. Accordingly, claimant's time to file and serve the instant motion was extended to Monday, May 1, 2017 by operation of state law (see General Construction Law 25-a [1]).

6. see n 5, supra