Opinion
# 2016-032-165 Claim No. 125665 Motion No. M-89097
01-11-2017
THOMAS GASPARRO v. THE STATE OF NEW YORK
Franzblau Dratch, P.C. By: Brian M. Dratch, Esq. Hon. Eric T. Schneiderman, NYS Attorney General By: Belinda A. Wagner, Assistant Attorney General, Of Counsel
Synopsis
Defendant's motion to dismiss is granted, as claimant failed to serve his notice of intention to file a claim within 90 days of accrual.
Case information
| UID: | 2016-032-165 |
| Claimant(s): | THOMAS GASPARRO |
| Claimant short name: | GASPARRO |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 125665 |
| Motion number(s): | M-89097 |
| Cross-motion number(s): | |
| Judge: | JUDITH A. HARD |
| Claimant's attorney: | Franzblau Dratch, P.C. By: Brian M. Dratch, Esq. |
| Defendant's attorney: | Hon. Eric T. Schneiderman, NYS Attorney General By: Belinda A. Wagner, Assistant Attorney General, Of Counsel |
| Third-party defendant's attorney: | |
| Signature date: | January 11, 2017 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
On December 23, 2013, claimant, at that time proceeding pro se, served defendant with a notice of intention to file a claim alleging that defendant failed to provide him with adequate medical care while he was incarcerated at Ulster Correctional Facility. On or about February 17, 2015, claimant filed the instant claim, which he served upon defendant on February 18, 2015. On or about March 10, 2015, defendant filed and served a Verified Answer raising five affirmative defenses, including that claimant's notice of intention was not timely served pursuant to Court of Claims Act § 10 (3). Defendant now moves to dismiss the claim on that basis, which motion claimant opposes.
"In determining a motion to dismiss, the Court of Claims must afford a liberal construction to the claimant's pleadings, accept the allegations as true, and accord the benefit of every possible favorable inference to the claimant" (Garofolo v State of New York, 80 AD3d 858, 860 [3d Dept 2011]; see Leon v Martinez, 84 NY2d 83, 87-88 [1994]). As relevant here, "[a] claimant seeking to recover damages for personal injuries caused by the negligence, intentional tort or unintentional tort of an officer or employee of the State must file and serve a claim or, alternatively, a notice of intention to file such a claim, upon the Attorney General within 90 days after the accrual thereof" (Maude v New York State Off. of Children & Family Servs., 82 AD3d 1468, 1469 [3d Dept 2011]; see Court of Claims Act § 10 [3], [3-b]). "A claim accrues for purposes of the Court of Claims Act when damages are reasonably ascertainable" (Flushing Natl. Bank v State of New York, 210 AD2d 294, 294 [2d Dept 1994], lv denied 86 NY2d 706 [1995] see e.g. Bullard v State of New York, 307 AD2d 676, 677-678 [3d Dept 2003]). "In medical malpractice actions, 'the cause of action accrues on the date when the alleged original negligent act or omission occurred'" (Wally G. v New York City Health & Hosps. Corp. [Metro. Hosp.], 27 NY3d 672, 674 [2016], quoting Young v New York City Health & Hosps. Corp., 91 NY2d 291, 295 [1998]).
Here, in his notice of intention to file a claim, claimant alleges that, while confined at Ulster Correctional Facility during the months of July 2013 and August 2013, he was treated for "pain incurred as a result of a damaged left knee" (Defendant's Exhibit A). He states that he was kept in the infirmary at Ulster for four and a half weeks, but that the medical staff failed to consult with the facility physician and to provide him with necessary antibiotics to treat a MRSA infection, which he had contracted during a previous surgery. Claimant states that he then returned to Mohawk Correctional Facility, which was his permanent facility, where he was immediately taken to the infirmary. Claimant alleges that he was transferred to Upstate Medical Center eight hours later, where his left leg was amputated. In the claim, claimant asserts that his cause of action for medical negligence arose "when between the months of June, July and August of 2013, while [he] was incarcerated at Ulster Correctional Facility, he complained of pain and severe pain to his left knee as well as a fever" (Claim ¶ 2). More specifically, in the Verified Bill of Particulars, claimant states that "[t]he medical negligence occurred between July 18, 2013 and August 12, 2013" (Defendant's Exhibit D, ¶ 3). According to the evidence submitted by claimant, said negligence resulted in the amputation of his left leg on August 14, 2013 (Claimant's Exhibit C). It is undisputed that claimant did not serve his notice of intention to file a claim upon defendant until December 23, 2013, and that he subsequently filed and served his claim on February 17, 2015 and February 18, 2015, respectively.
Claimant raises two primary arguments in opposition to the motion to dismiss. He first contends that defendant waived the opportunity to raise an objection to the timeliness of the claim by failing to make its motion to dismiss prior to the filing of a note of issue and certificate of readiness for trial. However, the Court finds that defendant properly and "with particularity" raised the affirmative defense that the notice of intention was untimely in its Verified Answer, which was filed and served less than 40 days after service of the claim (Court of Claims Act § 11 [c] [iii]; see 22 NYCRR 206.7 [a]). Thus, the defense was not waived and is properly before the Court (see Court of Claims Act § 11 [c] [iii]; compare Walton v State of New York, UID No. 2016-018-744 [Ct Cl, Fitzpatrick, J., Oct. 31, 2016]).
Claimant next argues that the continuous treatment doctrine serves to extend the commencement of the 90-day statute of limitations beyond the initial negligent act by defendant (see CPLR 214-a). "[T]he continuous treatment doctrine tolls the commencement of the limitations period 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'" (Simons v Bassett Health Care, 73 AD3d 1252, 1254 [3d Dept 2010], quoting McDermott v Torre, 56 NY2d 399, 405 [1982]). "The doctrine rests upon the belief that the best interests of a patient warrant continued treatment with an existing provider, rather than stopping treatment, as 'the [existing provider] not only is in a position to identify and correct his or her malpractice, but is best placed to do so'" (Rudolph v Jerry Lynn, D.D.S., P.C., 16 AD3d 261, 262 [1st Dept 2005], quoting McDermott v Torre, 56 NY2d at 408; see Young v New York City Health & Hosps. Corp., 91 NY2d 291, 296 [1998]). "However, 'initiation of the legal process . . . clearly sever[s] any continuing relationship of trust in the physician-patient relationship'" (Garofolo v State of New York, 80 AD3d at 859, quoting Toxey v State of New York, 279 AD2d 927, 929 [3d Dept 2001], lv denied 96 NY2d 711 [2001]). Specifically, in the prison setting, "the doctrine's tolling is interrupted by the filing of a notice of intention to file a malpractice claim" (Garofolo v State of New York, 80 AD3d at 859; see O'Connor v State of New York, 15 AD3d 827, 828 [2005], lv denied 5 NY3d 702 [2005]; Toxey v State of New York, 279 AD2d at 928-929).
Notably, courts have declined to apply the continuous treatment doctrine in cases alleging medical negligence - as opposed to medical malpractice - since "[t]he concerns underlying application of the doctrine . . . are simply inapplicable where the allegation is a lack of treatment rather than the improper provision of treatment" (Janvier v State of New York, UID No. 2016-015-165 [Ct Cl, Collins, J., Oct. 19, 2016]; see Watson v State of New York, 35 AD3d 985, 986 [3d Dept 2007], lv denied 8 NY3d 816 [2007]; Salquerro v State of New York, 212 AD2d 827, 828 [3d Dept 1995]). Accordingly, in deciding whether to apply the tolling provision of the continuous treatment doctrine to the instant claim, the Court must determine whether the claim sounds in medical malpractice or ordinary negligence. The distinction between the two causes of action "is a subtle one, for medical malpractice is but a species of negligence and no rigid analytical line separates the two" (Martuscello v Jensen, 134 AD3d 4, 10 [3d Dept 2015] [internal quotation marks and citations omitted]; accord Weiner v Lenox Hill Hosp., 88 NY2d 784, 787 [1996]). "The issue devolves to whether medical judgment is required or not; where the underlying claim arises from the failure to follow a medical order previously made or to apply standards of ordinary care, then it is negligence, without regard to whether expert testimony is deemed helpful to the resolution. However, where the conduct involves a standard established by means of the exercise of medical judgment, then it is malpractice" (Martuscello v Jensen, 134 AD3d at 11; see Weiner v Lenox Hill Hosp., 88 NY2d at 788; Moore v St. James Health Care Ctr., LLC, 141 AD3d 701, 702 [2d Dept 2016]).
Here, although the claim sounds in medical negligence, the gravamen of the claim is that defendant failed to properly diagnose and treat an infection in claimant's left leg from June 2013 through August 2013, which resulted in the amputation of the leg. Inasmuch as the question of whether the care given to claimant and/or the alleged delay in rendering such care affected or exacerbated an existing infection is not a matter of common knowledge which could be decided in the absence of expert testimony, the Court finds that the claim plainly sounds in medical malpractice (see Martuscello v Jensen, 134 AD3d at 11-12; see e.g. Janvier v State of New York, UID No. 2016-015-165 [Ct Cl, Collins, J., Oct. 19, 2016]; Ashby v State of New York, UID No. 2016-032-122 [Ct Cl, Hard, J., April 13, 2016]).
Turning then to the issue of whether the Court should apply the continuous treatment doctrine to extend the accrual date of the action, claimant asserts that the treatment of his condition by defendant's medical staff continued until May 2015 (Claimant's Affidavit ¶¶ 6-14). As set forth above, however, claimant served his notice of intention to file a claim on December 23, 2013, which "clearly severed any continuing relationship of trust in the physician-patient relationship and ended any 'continuous treatment tolling' at that point" (Toxey v State of New York, 279 AD2d at 929; see O'Connor v State of New York, 15 AD3d at 828). With respect to his treatment prior to that date, claimant avers that, on December 16, 2013, he complained of "phantom pain due to the amputation" (Claimant's Affidavit ¶ 11). Although claimant submits documentation to that effect in the form of an ambulatory progress note, such evidence is not admissible on this motion, as "[u]ncertified medical records and unsworn letters or reports are of no probative value" (Lentini v Page, 5 AD3d 914, 916 [3d Dept 2004] [internal quotation marks and citation omitted]; see CPLR 4518 [c]).
The Court notes that, even if the progress note were admissible, it would not be sufficient to extend the statute of limitations. CPLR 214-a explicitly requires that, for the toll to apply, the continuous treatment must be "for the same illness, injury or condition which gave rise to the . . . act, omission or failure" complained of. As described by claimant, the pain for which he sought treatment in December 2013 was due to the amputation (Claimant's Affidavit ¶ 11), whereas the original condition giving rise to defendant's failure to treat claimant was the infection in his left knee (Claim ¶ 3). Thus, even affording a liberal construction to the pleadings and according him the benefit of every possible favorable inference, claimant has failed to allege facts which would support a finding that a continuous course of treatment was established in connection with the infection (see Nykorchuck v Henriques, 78 NY2d at 259; Watson v State of New York, 35 AD3d at 986; Salquerro v State of New York, 212 AD2d at 828; compare Garofolo v State of New York, 80 AD3d at 860-861). Accordingly, because claimant failed to either file a claim or serve a notice of an intention to file a claim within 90 days of the accrual date, the claim must be dismissed as jurisdictionally defective (see Court of Claims Act § 10 [3]; Vargas v State of New York, 62 AD3d 1170, 1171 [3d Dept 2009]; Pizarro v State of New York, 19 AD3d 891, 892 [3d Dept 2005], lv denied 5 NY3d 717 [2005]).
Based upon the foregoing, it is hereby
ORDERED, that defendant's motion to dismiss (M-89097) is granted and the claim (No. 125665) is dismissed.
January 11, 2017
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims Papers Considered: 1. Notice of Motion dated August 19, 2016, and Affirmation in Support of Motion to Dismiss, affirmed by Belinda A. Wagner, AAG, on August 19, 2016, with exhibits. 2. Affirmation in Opposition to Motion to Dismiss, affirmed by Brian M. Dratch, Esq., with exhibits; Affirmation of Thomas Gasparro, signed by claimant on October 8, 2016. 3. Reply Affirmation, affirmed by Belinda A. Wagner, AAG, on October 31, 2016.