Opinion
# 2012-039-298 Claim No. 111893 Motion No. M-80877 Cross-Motion No. CM-80940
04-10-2012
COTTON v. STATE OF NEW YORK
Synopsis
Defendant's motion to dismiss the claim granted, in part. The claim is untimely inasmuch as it alleges medical malpractice and/or negligence with respect to eye surgery performed in June 2003. However, the claim is timely with respect to the allegations of medical malpractice and/or negligence that occurred within 90 days before the date the claim was filed. Claimant's cross motion for permission to file a late claim is denied. The Court is without authority to grant the relief sought, as the relevant statutes of limitation have expired. Case information
UID: 2012-039-298 Claimant(s): WALTER COTTON Claimant short name: COTTON Footnote (claimant name) : Defendant(s): STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 111893 Motion number(s): M-80877 Cross-motion number(s): CM-80940 Judge: James H. Ferreira Claimant's attorney: Walter Cotton, pro se Hon. Eric T. Schneiderman Attorney General of the State of New York Defendant's attorney: By: G. Lawrence Dillon Assistant Attorney General, of Counsel Third-party defendant's attorney: Signature date: April 10, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
This claim for damages was filed with the Chief Clerk of the Court of Claims on January 25, 2006. In it, claimant, an inmate proceeding pro se, seeks damages arising from medical care that he received between June 24, 2003 and December 24, 2005 at the Walsh Regional Medical Unit (hereinafter Walsh RMU) in the Mohawk Correctional Facility in Rome, New York. Specifically, claimant alleges that, on June 24, 2003, Dr. Tucker, a member of the medical staff at Walsh RMU, negligently performed eye surgery on claimant. Claimant asserts that the surgery was medically unnecessary and caused him to become blind in his right eye. He also avers that his blood-thinning medication was not adjusted properly prior to the surgery, causing him to bleed continuously for over two months afterwards. Claimant alleges that Dr. Tucker was not responsive to claimant's requests for corrective post-surgical medical care, and he served a notice of intention to file a claim upon the Attorney General in September 2003. Claimant alleges that he was thereafter assigned a new doctor who promised to address his condition but, as of December 24, 2005, "no one has made any attempt to correct the surgery d[e]spite repeated request[s] of the Claimant, and promises of the Medical Staff at Walsh to do so" (Claim ¶ 5).
Issue has been joined, and defendant now moves to dismiss the claim pursuant to CPLR 3211 (a) (2) and (8) on the ground that the claim is untimely.Claimant opposes the motion and cross moves for, among other things,an order granting permission to file a late claim if the Court finds that the claim is untimely. Defendant opposes the cross motion.
Defendant requests, in the alternative, that the motion be considered as one for an order granting summary judgment dismissing the claim "since there is no controversy with respect to the facts o[r] law and . . . the Claim is without merit" (Affirmation in Support of Motion to Dismiss ¶ 3). As defendant has submitted no evidence in support of its contention that the claim is without merit, the Court declines to exercise its discretion to convert the motion into one for summary judgment (see CPLR 3211 [c]).
Claimant also moves for an order conforming the pleadings to the proof and for immediate trial.
The Court of Claims Act requires, in relevant part, that a claim sounding in unintentional tort "be filed and served upon the attorney general within [90] days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor" (Court of Claims Act § 10 [3]; see also Court of Claims Act § 11). In the event a notice of intention is timely served, then "the claim shall be filed and served upon the attorney general within two years after the accrual" of a claim for "personal injuries caused by the negligence or unintentional tort" of defendant (Court of Claims Act § 10 [3]). It is well settled that "compliance with Court of Claims Act §§ 10 and 11 pertaining to the timeliness of filing and service requirements respecting claims . . . constitutes a jurisdictional prerequisite to the institution of a claim against the State" (Mallory v State of New York, 196 AD2d 925, 926 [1993]; see Davis v State of New York, 89 AD3d 1287, 1287 [2011]; Bush v State of New York, 60 AD3d 1244, 1245 [2009]).
As noted above, this claim was filed with the Court on January 25, 2006. The papers before the Court establish that claimant served the claim, by certified mail, return receipt requested, upon the Attorney General on January 24, 2006 (Motion to Dismiss ¶ 4; Exhibit C). The papers before the Court also establish that claimant served, by certified mail, return receipt requested, a notice of intention to file a claim upon the Attorney General on September 22, 2003 (Motion to Dismiss ¶ 4; Exhibits A and B). In support of its motion, defendant argues that this claim accrued on June 24, 2003 and, inasmuch as the notice of intention operated to extend claimant's time to file and serve a claim, the claim is untimely because it was not filed within two years after that date. Defendant also argues that the claim is untimely because it was filed after the expiration of the statute of limitations applicable to medical malpractice claims. Claimant responds that, although the eye surgery occurred on June 24, 2003, post-surgical treatment for the surgery continued for four months after that time and defendant "assur[ed] [claimant] they would repair the injury until Dec. 2005" (Affidavit in Support of Cross-Motion ¶ 6). Claimant argues that, as such, the claim was timely filed under the continuous treatment doctrine.
Generally, a medical malpractice claim accrues on the date of the alleged wrongful act or omission (see CPLR 214-a; Nykorchuck v Henriques, 78 NY2d 255, 258 [1991]). "Under the continuous treatment doctrine, the accrual of an inmate's claim for medical malpractice is 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'" (Garofolo v State of New York, 80 AD3d 858, 859 [2011], quoting Matter of Robinson v State of New York, 35 AD3d 948, 949 [2006] [internal quotations omitted]; see Borgia v City of New York, 12 NY2d 151, 156-157 [1962]). "The doctrine rests on the premise that it is in the patient's best interest that an ongoing course of treatment be continued, rather than interrupted by a lawsuit, because 'the doctor not only is in a position to identify and correct his or her malpractice, but is best placed to do so'" (Nykorchuck v Henriques, 78 NY2d at 258, quoting McDermott v Torre, 56 NY2d 399, 408 [1982]; accord Toxey v State of New York, 279 AD2d 927, 928 [2001], lv denied 96 NY2d 711 [2001]). Additionally, because the physician-patient relationship is necessarily severed by initiation of the legal process, the filing of a notice of intention to file a malpractice claim ends any tolling under the continuous treatment doctrine (see Garofolo v State of New York, 80 AD3d at 859; O'Connor v State of New York, 15 AD3d 827, 828 [2005], lv denied 5 NY3d 702 [2005]). Specifically, in the prison setting, an inmate's "unequivocal act of signaling legal proceedings by the filing of the notice of intention to file a claim sufficiently memorializes the end of confidence in his course of treatment such that his claim should have been timely filed thereafter" (O'Connor v State of New York, 15 AD3d at 828 [2005]; see Toxey v State of New York, 279 AD2d at 929).
"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 at 860). The Court finds that, to the extent that the claim alleges medical malpractice and/or negligence with respect to the eye surgery performed on June 24, 2003, it is untimely. The alleged wrongful acts or omissions occurred on June 24, 2003, the date of the surgery. Inasmuch as the claim alleges that claimant received some continuing post-surgical treatment for his eye condition, the continuing treatment doctrine only tolled the accrual date of his claim until September 22, 2003, when claimant served a notice of intention to file a claim and signaled the end of his confidence in the treatment provided to him (see O'Connor v State of New York, 15 AD3d at 828; Toxey v State of New York, 279 AD2d at 929). Thus, the Court will utilize September 22, 2003 as the date of accrual of claimant's allegations with respect to the eye surgery. Inasmuch as the notice of intention served that day extended claimant's time to file and serve a claim, the claim was not filed with the Court and served upon the Attorney General until January 2006, which is beyond the time period specified in Court of Claims Act § 10 (3). Claimant's failure to comply with the statutory filing and service requirements of the Court of Claims Act requires dismissal of this part of the claim.
The remainder of the claim alleges that, from June 24, 2003 until December 24, 2005, claimant was deprived of post-surgical medical care despite his repeated requests for treatment. A claim alleging the deprivation of medical treatment accrues on the date of the wrongful act or omission, and the continuing treatment doctrine is inapplicable to such claims (see Nykorchuck v Henriques, 78 NY2d at 258; White v Murphy, 277 AD2d 852 [2000]; Andujar v State of New York, UID # 2011-015-265, Claim No. 117522, Motion No. M-79944, Cross-Motion No. CM-80070, Collins, J. [Ct Cl Oct. 26, 2011]). Accepting claimant's allegations as true, the Court finds that the claim is timely with respect to the alleged medical malpractice and/or negligence that occurred between October 27, 2005 and December 24, 2005, as those alleged acts occurred within 90 days before January 25, 2006, the date the claim was filed (see Court of Claims Act § 10 [3]; Tindal v State of New York, UID # 2011-044-505, Claim No. 118954, Motion No. M-79094, Cross-Motion No. CM-79174, Schaewe, J., [Ct Cl Feb. 14, 2001]). The claim is untimely, however, inasmuch as it alleges deprivation of medical treatment that occurred prior to October 27, 2005, and this part of the claim must be dismissed.
Having dismissed part of the claim as untimely, the Court now turns to claimant's cross motion for permission to file a late claim. The Court notes that claimant has not attached a proposed claim to his motion. While the Court recognizes that a proposed claim must accompany any application seeking permission to serve and file a late claim pursuant to Court of Claims Act § 10 (6), in the interest of judicial economy, this Court will consider claimant's previously filed (although partially untimely) claim as his "proposed claim" for purposes of addressing this application on the merits (see Long v State of New York, UID #2007-009-017, Claim No. 113050, Motion Nos. M-72815, M-72890, Midey, J. [Ct Cl June 29, 2007]). However, the Court has discretion to grant or deny an application for permission to file a late claim only if the applicable statute of limitations set forth in CPLR article 2 has not expired (see Court of Claims Act § 10 [6]; Roberts v City Univ. of N. Y., 41 AD3d 825, 826 [2007]). Here, the proposed claim alleges both causes of action sounding in negligence, which are subject to a three-year statute of limitations (see CPLR 214 [5]), and medical malpractice, which are subject to a two and a half year statute of limitations (see CPLR 214-a). The most recent date alleged in the proposed claim is December 24, 2005. As this motion was filed on January 23, 2012, over six years after that date, the relevant statutes of limitation have expired and the Court is without authority to grant the relief sought (see Court of Claims Act § 10 [6]).
The Court also denies the other requests for relief made by claimant in his cross motion. Claimant moves to "conform the pleading to the proof" pursuant to CPLR 3025 (c) "to the extent that [there] are any variances between allegations in [paragraph 3 of his affidavit in support of the cross motion] and [the claim]" (Affidavit in Support of Cross Motion ¶ 10). CPLR 3025 (c) permits the amendment of pleadings to conform them to the evidence and is inapplicable where, as here, no evidence has been received by the Court. To the extent that claimant seeks to amend the claim to allege additional facts or theories of liability, the proper procedure is a motion for leave to amend or supplement the claim (see CPLR 3025 [b]). In any event, the Court declines to grant the relief sought, as claimant has failed to identify the specific changes or additions to be made to the pleading (see CPLR 3025 [b]).
Claimant also moves for an immediate trial, stating that he "is in possession of all evidence . . . including med[ical] records to prove his allegation" and is ready for trial (Affidavit in Support of Cross Motion ¶ 12). This part of claimant's motion is also denied. The scheduling of prisoner pro se claims falls within the discretion of the Court, and this matter will be scheduled for trial as soon as is practicable (see Uniform Rules for the Court of Claims § 206.13).
Based upon the forgoing, defendant's motion to dismiss the claim is granted as to that part of the claim that alleges malpractice and/or negligence occurring prior to October 27, 2005 and is otherwise denied. Claimant's cross motion is denied in its entirety.
April 10, 2012
Albany, New York
James H. Ferreira
Judge of the Court of Claims
Papers Considered:
1. Notice of Motion to Dismiss Claim, dated December 15, 2011;
2. Affirmation in Support of Motion by G. Lawrence Dillon, AAG, dated December 15, 2011, with exhibits;
3. Notice of Motion, dated January 17, 2012;
4. Affidavit in Support of Motion, sworn to on January 17, 2012; and
5. Letter in Response by G. Lawrence Dillon, AAG, dated January 30, 2012.