Opinion
# 2012-015-291 Claim No. 118504 Motion No. M-80472
01-27-2012
VIDAL v. THE STATE OF NEW YORK
Synopsis
Claimant's motion to dismiss defense that claim was untimely filed or served was denied and claim was dismissed sua sponte as untimely. Case information
UID: 2012-015-291 Claimant(s): JOSEPH VIDAL Claimant short name: VIDAL Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 118504 Motion number(s): M-80472 Cross-motion number(s): Judge: FRANCIS T. COLLINS Claimant's attorney: Joseph Vidal, Pro Se Honorable Eric T. Schneiderman, Attorney General Defendant's attorney: By: Joan Matalavage, Esquire Assistant Attorney General Third-party defendant's attorney: Signature date: January 27, 2012 City: Saratoga Springs Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant, a pro se inmate, seeks damages for dental malpractice and moves for an Order dismissing defendant's fifth affirmative defense pursuant to CPLR 3211 (b). Defendant asserts the following as its fifth affirmative defense:
"This Court lacks subject matter jurisdiction over the claim as the claim is untimely in that although a timely notice of intention was properly served and filed and although the claim was filed, the claim was not timely served as required by Court of Claims Act Sections 10 (3) and 11 as it was served more than two years after the accrual of the claim."
It is undisputed that claimant served a notice of intention to file a claim by certified mail, return receipt requested, which was received in the Attorney General's Office on June 6, 2008 (claimant's Exhibits 2 and 3). The notice of intention alleges that on May 8, 2008 claimant underwent a dental cleaning during the course of which the hygienist "failed to conduct the cleaning with care and negligently cracked my top left second back tooth" (claimant's Exhibit 2).
The claim, filed on June 9, 2010 and served on June 14, 2010, alleges that claimant's tooth was fractured on May 8, 2008 during a cleaning performed by a dental hygienist, that claimant was advised by a dentist on June 9, 2008 that the tooth could not be saved and that the tooth was extracted that same day (claimant's Exhibit 4, Verified Claim, ¶¶ 30-33). Claimant alleges he was thereafter treated on July 29, 2008 for discomfort stemming from the extraction (claimant's Exhibit 4, Verified Claim, ¶¶ 36, 37).
In his affidavit in support of the motion, claimant avers that on June 7, 2010 he "properly addressed two separate manila envelopes" to both the Attorney General's Office and the Court of Claims, and requested prison officials to immediately send his claim to the Attorney General's Office by certified mail, return receipt requested (claimant's affidavit ¶5). While the claim was received in the Office of the Clerk of the Court of Claims on June 9, 2010, it was not received in the Attorney General's Office until June 14, 2010 (affidavit of Joan Matalavage, ¶ 6; defendant's Exhibit B, Verified Claim with date-stamp of the Attorney General Claims Bureau indicating the date the claim was received; claimant's Exhibit 23, certified return receipt).
In support of his motion, claimant contends that the claim accrued on June 9, 2008 when his tooth was extracted and his damages became reasonably ascertainable (claimant's affidavit sworn to September 30, 2011, ¶ 3; reply affidavit ¶ 11). Claimant attributes the belated service of the claim on the Attorney General to a series of failures on the part of prison staff and contends that but for such conduct, "timely service of process would have been completed on June 9, 2010, the same date the Court received [his] claim . . ." (claimant's reply affidavit, ¶ 7).
Court of Claims Act § 10 (3) requires that a claim to recover damages for personal injuries caused by the negligence or unintentional tort of an officer or employee of the State be filed and served within 90 days after accrual of the claim unless a notice of intention to file a claim is served within that time period "in which event the claim shall be filed and served upon the attorney general within two years after the accrual of such claim." The State's waiver of immunity under Section 8 of the Court of Claims Act is contingent upon claimant's compliance with the specific conditions to suit set forth in article II of the Court of Claims Act, which include the time limitations contained in Court of Claims Act § 10 (Lyles v State of New York, 3 NY3d 396 [2004]; Lepkowski v State of New York, 1 NY3d 201 [2003]). As noted by the Court of Appeals in Lyles v State of New York, "[t]he time limitations of the Court of Claims Act . . . are distinctly concerned with the subject matter jurisdiction of the Court of Claims as the State has waived its sovereign immunity against suit only to the extent that claimants comply with the provisions of the statute" (3 NY3d at 400). Thus, "[f]ailure to comply with the statutory filing and service requirements deprives the Court of Claims of subject matter jurisdiction and compels dismissal of the claim" (Maude V. v New York State Off. of Children & Family Servs., 82 AD3d 1468, 1469 [2011]).
A claim for failure to provide proper medical treatment generally accrues on the date of the wrongful act or omission (Nykorchuck v Henriques, 78 NY2d 255, 258 [1991]). Under the continuous treatment doctrine, however, "the time in which to bring a malpractice action is stayed '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' " (McDermott v Torre, 56 NY2d 399, 405 [1982], quoting Borgia v City of New York, 12 NY2d 151, 155 [1962]; see also CPLR 214-a). The purpose of the doctrine is to "maintain the physician-patient relationship in the belief that the most efficacious medical care will be obtained when the attending physician remains on a case from onset to cure" (McDermott v Torre, at 408; Johanson v Sullivan, 68 AD3d 1303, 1304 [2009]). Timely follow-up visits related to the initial treatment provided will, generally, toll the running of the applicable time limitations period. Visits unrelated to the initial treatment do not (Boyle v Fox, 51 AD3d 1243, 1244 [2008]; Lemmerman v Delmar Dental, 3 AD3d 771, 772 [2004]).
Claimant's argument that the defendant should be estopped from raising the time limitations contained in Court of Claims Act § 10 (3) as a defense is premised upon the incorrect assumption that his claim accrued on June 9, 2008 when his tooth was extracted as a result of the negligent treatment rendered on May 8, 2008. It has been held that "[e]ven in the context of a prison, where an inmate has no choice but to submit to the medical care furnished by defendant, the initiation of legal action 'sufficiently memorializes the end of confidence in [the inmate's] course of treatment' to require timely action thereafter" (Garofolo v State of New York, 80 AD3d 858, 860 [2011], quoting O'Connor v State of New York, 15 AD3d 827, 828 [2005], lv denied 5 NY3d 702 [2005]; see also Toxey v State of New York, 279 AD2d 927 [2001], lv denied 96 NY2d 711 [2001]). Claimant's service of a notice of intention on June 6, 2008 marked the end of his trust and confidence in the dental services provided and interrupted any tolling of the accrual of claimant's dental malpractice claim (see Toxey v State of New York, 279 AD2d at 929). As a result, the claim should have been filed and served within two years after the date of service of the notice of intention. Instead, claimant did not commence his efforts to facilitate service and filing of the claim until June 7, 2010, more than two years after the notice of intention was served. Therefore, any delay allegedly attributable to the misconduct of prison staff could have no bearing on the outcome. The claim filed on June 9, 2010 and served on June 14, 2010 is time-barred.
To the extent claimant seeks permission to treat his notice of intention as a claim, the request must be denied. 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 civil practice law and rules" (Court of Claims Act § 10 [8] [a]). CPLR 214-a requires that a claim for dental malpractice be commenced within two years and six months of the act or omission complained of "or last treatment where there is a continuous treatment for the same illness, injury or condition which gave rise to the said act . . ." Claimant's application for permission to treat his notice of intention as a claim is untimely, having been filed on October 6, 2011, more than two years and six months after the date the claim accrued.
Accordingly, claimant's motion to dismiss defendant's fifth affirmative defense is denied Inasmuch as the time limitations of the Court of Claims Act § 10 (3) are jurisdictional prerequisites to maintenance of a claim in the Court of Claims, the claim is dismissed, sua sponte, as untimely.
January 27, 2012
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
1. Notice of motion dated September 30, 2011;
2. Affidavit of Joseph Vidal sworn to September 30, 2011 with exhibits;
3. Affidavit of Joan Matalavage sworn to October 20, 2011 with exhibits;
4. Reply affidavit of Joseph Vidal sworn to November 9, 2011.