Opinion
119163
05-05-2016
HONGXING YIN, Claimant, v. The STATE of New York, Defendant.
For Claimant: HONGXING YIN, Pro Se For Defendant: HON. ERIC T. SCHNEIDERMAN, New York State Attorney General, BY: Michael T. Feeley, Esq., Assistant Attorney General
For Claimant: HONGXING YIN, Pro Se
For Defendant: HON. ERIC T. SCHNEIDERMAN, New York State Attorney General, BY: Michael T. Feeley, Esq., Assistant Attorney General
J. David Sampson, J.
Claimant Hongxing Yin seeks monetary damages for the loss of a tooth allegedly caused by the dental services he received in the Dental Clinic at the State University of New York at Buffalo. Defendant moves to dismiss the claim in its motion for summary judgment on the grounds that the Court does not have subject matter jurisdiction, Claimant has failed to state a cause of action and Claimant failed to timely serve the claim. Claimant opposes Defendant's motion.
Court of Claims Act §§ 10 (3) and 11(a) (1) (i), provide that a claim for personal injuries caused by the negligence or intentional tort 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 a claim based on a negligent or unintentional tort or within one year after accrual of a claim based on an intentional tort. 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 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] ). In the present claim, the defense of untimeliness was raised with particularity as an affirmative defense in Defendant's answer as required by Court of Claims Act § 11 (c). Defendant alleges that neither a notice of intention nor the claim was served within the requisite ninety (90) day period.
Claimant filed claim no. 119163 on November 15, 2010. The claim was served on the Buffalo Office of the Attorney General on May 5, 2011 (Defendant's Exhibits A and E). There is no record of the service of a notice of intention to file a claim (Defendant's Exhibit E).
According to the claim, the Dental Clinic at the University of Buffalo "cheated" the Claimant by removing a tooth for implant without telling him that he first needed gum treatment. Whether these allegations state an intentional tort, a negligence cause of action or a dental malpractice cause of action, Claimant was required to file and serve his claim within ninety (90) days of accrual of the claim. An action based on negligence, malpractice or on an intentional tort generally accrues on the date of the alleged wrongdoing ( Nykorchuck v. Henriques , 78 NY2d 255 [1991] ; Trayer v. State of New York , 90 AD2d 263 [3d Dept 1982] ).
Claimant alleges in his claim that the claim accrued between September 9, 2009 and October of 2010. During his examination before trial, however, Claimant testified that the last day he received dental treatment from the Dental Clinic at the University at Buffalo was November 19, 2009 (Defendant's Exhibit D, pg. 61). In his unsworn "Response to Summary Judgment," Claimant states that the Dental Clinic sent him a letter in December 2009 terminating all treatment (Claimant's response to summary judgment, ¶ 11). Whether the Court utilizes November 19, 2009 or December of 2009 as the accrual date, the claim had to be filed and a copy served by no later than March 31, 2010. Claimant did not serve his claim until May 5, 2011 and his failure to timely serve his claim by March 31, 2010 renders his claim jurisdictionally defective, requiring dismissal of the claim.
A statement in opposition to a motion should be in the form of an affidavit sworn to before a notary public. Because Claimant is proceeding pro se, his unsworn statement has been read and considered.
The ninetieth day after December 31, 2009, the last possible date of accrual, is March 31, 2010.
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In Claimant's response to Defendant's Demand for Verified Bill of Particulars, Claimant alleges that the dates of the alleged occurrence were between June 2, 2008 and October 27, 2010 (Defendant's Exhibit C, ¶ 4). According to Claimant's "Response to Demand for Verified Bill of Particulars," the Dental Clinic sent Claimant a bill for services on October 1, 2010 (Defendant's Exhibit C, ¶ 6). This bill was dropped by the Dental School on October 12, 2010 (see pg. 7 of Claimant's typed notes attached to his response to summary judgment). Were the Court to consider October 2010 as the latest possible accrual date set forth in the claim, the claim would still be jurisdictionally defective as being untimely served as the claim was served on May 11, 2011, more than ninety (90) days after October 27, 2010, the latest possible accrual date stated in his claim. Whether November 19, 2009, was the last day of treatment or October 27, 2010, as the latest accrual date listed in the claim is utilized, Claimant's claim was untimely served and must be dismissed.
In response to Defendant's motion, Claimant argues that his ninety (90) day period within which to file and serve a claim was tolled due to gastrointestinal complaints which were not fully diagnosed until 2012 (see Claimant's response to summary judgment, ¶ 3). Pursuant to CPLR 208, the time within which to commence an action may be tolled if the Claimant is under a disability due to infancy or insanity at the time the claim accrues. Claimant has alleged no such disability. In addition, the time within which to commence a malpractice action may be extended where "the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint" ( Borgia v. City of New York , 12 NY2d 151, 155 [1962] ). Under the "continuous treatment" doctrine ( CPLR 214–a ), the statute of limitations will not begin to run until the end of the course of treatment as long as treatment continues for the same condition or complaint ( Richardson v. Orentreich , 64 NY2d 896 [1985] ). Claimant's last treatment at the Dental Clinic occurred on November 19, 2009. During oral argument, Claimant admitted that he had never treated with the Dental Clinic for his gastrointestinal complaints and that his gastrointestinal problems did not prevent him from filing a claim. Accordingly, Claimant's time within which to file and serve his claim was not tolled under CPLR 208 or pursuant to the continuous treatment doctrine under CPLR 214–a.
Furthermore, Claimant's time to file and serve a claim was not extended here by the service of a notice of intention to file a claim. A notice of intention is a verified document which, like a claim, states the time when and place where the claim arose, and states the nature of the claim. Unlike a claim, a notice of intention need not include items of damage or injuries. A notice of intention is to be served personally or by certified mail, return receipt requested, upon the Attorney General ( Court of Claims Act §§ 11 [a] [1] and 11 [b] ). As raised by Defendant in its motion, no notice of intention to file a claim was served upon the Attorney General (see Defendant's Exhibit E).
Insofar as the claim must be dismissed for being untimely served, it is not necessary for this the Court to consider Defendant's alternate grounds for dismissal of the claim or for summary judgment. Based on the foregoing, Defendant's motion no. M–87892 to dismiss the claim as being untimely served is granted and claim no. 119163 is hereby dismissed.
The following were read and considered by the Court:
1. Notice of motion and affidavit of Assistant Attorney General Michael T. Feeley sworn to December 9, 2015, with annexed Exhibits A–E;
2. Unsworn response to summary judgment of Hongxing Yin dated March 31, 2016;
3. Reply affidavit of Assistant Attorney General Michael T. Feeley sworn to April 8, 2016.