Defendant's motion to dismiss the claim as untimely is denied. Defendant moved for identical relief in a previous motion and is barred by the "single motion" rule from seeking such relief in a subsequent motion.
|Claimant short name:||GAJADHAR|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||WINSTON GAJADHAR, Pro se|
|Defendant's attorney:||LETITIA JAMES, Attorney General
of the State of New York
By: Jeane L. Strickland Smith, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||October 7, 2019|
|See also (multicaptioned case)|
Claimant, an individual incarcerated in a State correctional facility, filed this claim seeking compensation for damages he suffered as a result of alleged medical malpractice by medical staff at Green Haven Correctional Facility (CF). Defendant moves to dismiss the claim as untimely. Claimant opposes the motion on the ground that defendant previously moved for the identical relief in a pre-answer motion to dismiss, and the Court determined that the claim was timely filed and served.
On January 14, 2011, claimant served on the Attorney General a Notice of Intention to File a Claim in which he alleged that on November 13, 2010, he injured his right knee in the gym at Green Haven CF as a result of the negligence of defendant's agents at that facility (see Strickland Smith Affirmation in Support of Motion to Dismiss, Exhibit A). On May 25, 2012, claimant served on the Attorney General this claim alleging denial of medical care with respect to his right knee from May 29, 2011(1) through April 5, 2012 (see id., Exhibit B). Defendant made a pre-answer motion to dismiss the claim on the grounds (1) that the claim was untimely because it was served more than 90 days after it accrued and (2) that the notice of intention was also untimely, having been served seven months after the accrual date alleged in the claim, and did not extend claimant's time to serve and file the claim (see id., Exhibit C). Defendant argued that the continuous treatment doctrine did not apply to toll the time within which to serve and file the claim. In opposition, claimant argued that the continuous treatment doctrine did apply because he initially injured his knee on November 13, 2010, and he continued to receive medical treatment for the knee. The Court denied defendant's motion to dismiss, holding that the notice of intention did not extend claimant's time to serve and file the claim in this matter because "it contain[ed] entirely different allegations of wrongdoing than those asserted in the claim, indeed, it lack[ed] any indication that the quality of the medical care [claimant] received would be challenged," and the claim did "not contain any allegations of wrongdoing related to claimant's right leg 'caused by negligence and discrimination' by State personnel on November 13, 2010 in the gym, but rather talk[ed] about medical treatment received thereafter, or a lack of treatment, and allege[d] a date of accrual of May 29, 2011" (id. at p. 4). Nonetheless, the Court denied defendant's motion to dismiss because it could not determine at that stage of the litigation "whether alleged acts of medical malpractice occurring more than 90 days before the claim was served . . . [were] subject to the continuous treatment doctrine" and that "regardless, acts of malpractice occurring within 90 days of service of the claim [were] timely alleged" (id. at p. 5).(2)
After the parties received notification that the claim was scheduled for trial on October 31, 2019, defendant once again moved to dismiss the claim on jurisdictional grounds, arguing again that "the [c]laim was untimely served on May 25, 2012, nearly two years after the stated accrual date of May 29, 2010" (Strickland Smith Affirmation in Support of Motion to Dismiss, ¶ 5). Citing to the Court's prior denial of its pre-answer motion to dismiss, defendant argues that the notice of intention cannot extend the time for filing the claim because the allegations contained in the notice of intention are entirely different from those in the claim and, therefore, the claim was untimely filed and served (see id. at ¶¶ 5-6). In opposition, claimant argues that defendant's motion to dismiss must be denied on the basis of the doctrine of law of the case, particularly because defendant has failed to present any "subsequent evidence . . . that would affect the prior determination" (Reply Affidavit in Opposition to Defendant's Motion to Dismiss Pursuant to Court of Claims Act §§ 10 and 11, ¶ 4). Claimant is correct and, for the reasons that follow, defendant's motion to dismiss will be denied.
As an initial matter, the claim, served on the Attorney General on May 25, 2012 and filed with the Court of Claims on June 25, 2012, is no longer the operative pleading in this matter. On September 4, 2018, while claimant's motion to amend and supplement the claim was pending, claimant filed with the Clerk of the Court of Claims the amended claim that was subject of that motion (see Gajadhar v State of New York, UID No. 2018-038-601, Ct Cl, DeBow, J., Dec. 14, 2018]). The Court held, therefore, that "the amended claim is the claim that is currently pending before this Court, subject to whatever legal objections may apply," and "[c]laimant's filing of the amended claim during the pendency of [the] motion . . . mooted his motion" (id.). Thus, by this Court's order, the amended claim superseded the initial claim and became the operative pleading in this matter.
In the Appellate Division, Second Department, where Green Haven CF is located and whose precedent thus controls, when a claimant improperly serves a pleading without leave "beyond any time period within which an amendment could have been made as of right, . . . defendant waive[s] any objection to those pleadings on that basis by failing to reject them" (Nassau County v Incorporated Vil. of Roslyn, 182 AD2d 678, 679 [2d Dept 1992] [internal citation omitted]; see Chiulli v Coyne, 210 AD2d 450, 450 [2d Dept 1994]; Young v State of New York, UID No. 2019-015-134 [Ct Cl, Collins, J., Apr. 24, 2019]). To date, defendant has neither demonstrated that it rejected the claim nor moved to dismiss the amended claim and thus has waived any objection it may have had with respect to the amended claim. However, it is well settled that a jurisdictional pleading defect may not be cured by serving an amended claim (see Hogan v State of New York, 59 AD3d 754, 755 [3d Dept 2009]; Roberts v State of New York, 4 Misc 3d 768, 774 [Ct Cl 2004]), and here, defendant challenges the Court's jurisdiction on timeliness grounds. Because defendant's motion addresses a jurisdictional defect, which cannot be cured by the filing of the amended claim, and because the jurisdictional validity of the amended claim is necessarily dependent upon whether the initial claim was timely filed and served, defendant's motion is properly addressed to the initial claim.
Turning to the merits of the motion, defendant has previously made a motion to dismiss pursuant to CPLR 3211 (a) and thus is barred by the "single-motion rule" from making a subsequent motion to dismiss (see Oakley v County of Nassau, 127 AD3d 946, 946-947 [2d Dept 2015]). Even if a second motion to dismiss were permitted, it would be denied under the law of the case doctrine inasmuch as defendant seeks to dismiss the claim on the identical ground on which it sought dismissal in its pre-answer motion, i.e. that the notice of intention failed to extend the time to file and serve the claim. The Court denied that identical motion in its prior ruling, and defendant has failed to identify any change in the law or offer any new evidence in support of the instant motion (see Strujan v Glencord Bldg. Corp., 137 AD3d 1252, 1253-1254 [2d Dept 2016]). Lastly, defendant has failed to offer any evidence or argument addressed to whether the continuous treatment doctrine applies to toll the running of the limitations period.
Accordingly, it is
ORDERED, that motion number M-94430 is DENIED.
October 7, 2019
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Notice of Intention to File a Claim, dated January 6, 2011;
2. Claim number 121461, filed June 25, 2012;
3. Verified Answer, filed January 28, 2013;
4. Notice of Motion, dated August 12, 2019;
5. Affirmation of Jeane L. Strickland Smith, AAG, in Support of Motion to Dismiss, dated August 12, 2019, with Exhibits A-D;
6. Reply Affidavit in Opposition to Defendant's Motion to Dismiss Pursuant to Court of Claims Act §§ 10 and 11, dated August 17, 2019, with Exhibits A-B.
1. Although the claim alleges that the medical malpractice began on May 29, 2010, in response to defendant's pre-answer motion to dismiss, claimant stated that due to a typographical error, the date of accrual was misstated as May 29, 2010, and that the correct date was May 29, 2011 (see Strickland Smith Affirmation in Support of Motion to Dismiss, Exhibit C [Decision & Order of Hon. Thomas H. Scuccimarra, filed December 11, 2012]). In deciding that motion, the Court chose to "[take] at face value [claimant's] assertion that it was a typographical error in his claim" (id. at p. 4), and the undersigned will do likewise in deciding the instant motion.
2. The Court noted that "[r]ead generously, the claim asserts that the incorrect treatment or lack of treatment [was] ongoing 'through April 5, 2012' " (id. at p. 4).