Opinion
# 2016-053-524 Claim No. 126504 Motion No. M-87754
06-17-2016
SCOT A. SILL v. THE STATE OF NEW YORK
SCOT A. SILL, Pro Se HON. ERIC T. SCHNEIDERMAN New York State Attorney General BY: Darren Longo, Esq. Assistant Attorney General
Synopsis
Defendant's motion to dismiss the claim for lack of jurisdiction is granted. Although a question of fact exists whether Claimant had on-going treatment to qualify as continuous treatment to support his medical negligence or medical malpractice claim, both the claim and the notice of intention to file a claim were improperly served. Claimant also fails to establish that his claim should be tolled.
Case information
| UID: | 2016-053-524 |
| Claimant(s): | SCOT A. SILL |
| Claimant short name: | SILL |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126504 |
| Motion number(s): | M-87754 |
| Cross-motion number(s): | |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | SCOT A. SILL, Pro Se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General BY: Darren Longo, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | June 17, 2016 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant Scot A. Sill, an inmate proceeding pro se, alleges in claim no. 126504 that he injured his left wrist in 2014 while doing lawn work at Collins Correctional Facility (Collins) where he was incarcerated and that Collins denied him proper care for his wrist injury. In lieu of answering the claim, Defendant has moved to dismiss the claim for lack of jurisdiction. Claimant opposes the motion.
Court of Claims Act §§ 10 (3) and 11(a) (1) (i), provide that a claim for personal injuries caused by the negligence of an officer or employee of the State of New York must be filed and a copy served upon the Attorney General personally or by certified mail, return receipt requested, within ninety (90) days of accrual of the claim, unless the Claimant shall within the same ninety (90) day period serve upon the Attorney General a notice of intention to file a claim, in which event the claim shall be filed and served within two years after accrual of the claim. The filing and service requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]). The failure to timely and properly serve a copy of a notice of intention or of the claim within the requisite ninety (90) day period divests the Court of jurisdiction requiring dismissal of the claim (Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]). Defendant alleges that neither a notice of intention nor the claim was properly served within the requisite ninety (90) day period.
On July 27, 2015, Claimant filed claim no. 126504 and served the claim together with a notice of intention to file a claim upon the Attorney General. According to the claim (Defendant's Exhibit A) and to the notice of intention (Defendant's Exhibit C), the claim arose some time in 2014 when the Claimant injured his left wrist while working on the lawns and grounds at Collins. Assuming that Claimant's injuries occurred on December 31, 2014, the latest possible date when the claim could have accrued, then both the claim and the notice of intention to file a claim were untimely as they were filed and served more than ninety (90) days after accrual of the claim. Thus, insofar as the claim seeks damages for the personal injuries Claimant sustained in 2014 while working on the grounds at Collins, it is untimely and must be dismissed.
Claimant further alleges in his claim that the medical staff at Collins only gave him medication and a splint to wrap his injured left wrist and that he has been denied proper medical care for his wrist injury up to the date of July 22, 2015. Defendant does not specifically address Claimant's medical neglect or malpractice cause of action. Claimant, however, argues that Collins had sufficient time within which to figure out his medical problem and to provide proper care for his left wrist. According to Claimant, his claim for medical neglect should accrue on the last day he complained about his injuries.
A cause of action for medical negligence or for medical malpractice accrues on the date of the alleged act, omission or failure complained of (Santana v St. Vincent Catholic Med. Ctr. of N.Y, 65 AD3d 1119 [2d Dept 2009]). Here, the only medical act mentioned in the claim was the issuance of pain medication and a wrap for his wrist which, according to the notice of intention, occurred at the beginning of 2015, more than ninety (90) days before the claim and notice of intention were filed and served.
In opposition to Defendant's motion, Claimant appears to be arguing that his time to file and serve a medical neglect or malpractice claim should be tolled pursuant to Court of Claims Act § 10 (5), which provides that "[i]f the claimant shall be under legal disability, the claim may be presented within two years after such disability is removed." The term "legal disability" is not defined in the Court of Claims Act. It is, therefore, necessary to look to the CPLR for a definition (see Court of Claims Act § 9 [9]). CPLR 208 provides that a statute of limitations may be tolled if the person commencing suit is under a disability due to infancy or insanity at the time the claim accrues. There is no evidence that Claimant was an infant, insane or even receiving mental health care in 2014 or early 2015 when his claim allegedly accrued. Accordingly, Claimant has failed to establish that his claim should be tolled due to infancy or insanity.
Finally, under the continuous treatment doctrine, which is not discussed by either party, a statute of limitations can be tolled until the end 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], quoting Iazzetta v Vicenzi, 200 AD2d 209, 211 [3d Dept 1994], lv denied 85 NY2d 857 [1995]. The continuous treatment doctrine does not contemplate circumstances where a patient initiates visits to have his condition checked (Nielson v Perconte, 254 AD2d 264, 265 [ Dept 1998], lv denied 92 NY2d 818, [1999], quoting Mc Dermott v Torre, 56 NY2d 399, 405 [1982]). Without Claimant's medical records, the Court cannot determine if Claimant was being treated for his wrist injury at any time after the beginning of 2015 when he was issued pain medication and a wrist wrap as alleged in the notice of intention or whether Claimant's reoccurring pain and numbness as alleged in the claim were ever reported to the medical staff at Collins and, if reported, whether they amounted to sporatic and isolated complaints which do not qualify as continuous treatment (see Watkins v State of New York, UID No. 2013-018-423 [Ct Cl, Fitzpatrick, J., May 20, 2013]). Accordingly, a question of fact exists whether there was ongoing treatment for Claimant's wrist injury which could preclude dismissal of the medical negligent or medical malpractice cause of action alleged in the notice of intention and in the claim for lack of jurisdiction due to untimely filing and service of the claim (id.).
Defendant further argues that the claim should be dismissed as the claim and the notice of intention were improperly served. In his affirmation, Assistant Attorney General Longo initially alleges that the claim and the notice of intention were served together via certified mail. The envelope attached as Defendant's Exhibit B shows none of the indices of mailing by certified mail or by certified mail, return receipt requested, as required by Court of Claims Act § 11. Assuming that service was accomplished by certified mail, without a request for a return receipt, such service would be considered inadequate for failing to satisfy the literal requirements of the Court of Claims Act, requiring dismissal of the claim (see Femminella v State of New York, 71 AD3d 1319 [3d Dept 2010]; Adams v State of New York, UID No. 2016-041-015 [Ct Cl, Milano, J., Mar. 29, 2016]).
It appears more likely, however, that the claim and the notice of intention were served together by regular mail as later alleged by Assistant Attorney General Longo in his affirmation. As previously noted, the envelope in which both the claim and the notice of intention were served (Defendant's Exhibit B) shows none of the indicia of certified mailing or of a request for a return receipt. In addition, the amount of postage does not appear to be sufficient for certified mail, return receipt requested, and the affidavit of service attached to the claim indicates that the claim and the notice of intention were placed in a regular envelope and placed in the custody of Collins for delivery to the U. S. Postal Service. While Claimant alleges that he has several grievances pending against Collins for its failure to properly handle mail, he fails to allege that Collins mishandled service of the claim and the notice of intention in the present case, fails to allege that he even requested that his claim and notice of intention be served by certified mail, return receipt requested, and he fails to establish that he filled out an advance request form indicating that he was requesting service by certified mail, return receipt requested. Claimant has failed to satisfy the statutory service requirements of section 11 (a) of the Court of Claims Act (see Smith v State of New York, UID No. 2010-009-027 [Ct Cl, Midey, J., Sept 21, 2010]). Thus, regardless of the fact that a question exists as to whether the claim for medical negligence or malpractice can be dismissed for failing to be timely served upon the Attorney General, the entire claim must be dismissed as it was improperly served upon the Attorney General by regular mail (Zoeckler v State of New York, 109 AD3d 1133 [4th Dept 2013]).
Based on the foregoing, Defendant's motion no. M-87754 is granted and claim no. 126504 is dismissed.
June 17, 2016
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims The following were read considered by the Court: 1. Notice of motion and affirmation of Assistant Attorney General Darren Longo dated November 17, 2016, with annexed Exhibits A-C; 2. Letter from Scot A. Sill received December 24, 2016 enclosing a copy of a parol hearing decision dated October 18, 2015; and 3. Affidavit in answer to motion to dismiss of Scot A. Sill sworn to February 16, 2016, with annexed Exhibits.