Defendant's motion to dismiss the claim for failing to meet the pleading requirements of Court of Claims Act § 11 (b) and on the additional ground the claim was untimely was granted. Claimant failed to allege the date the claim of medical malpractice "arose" as required by § 11 (b). In addition, the claim was filed and served more than two years from the date of claimant's last date of treatment and was therefore untimely in any event.
|Claimant short name:||GRANGER|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Franzblau Dratch, P.C.
By: Brian M. Dratch, Esq.
|Defendant's attorney:||Honorable Letitia James, Attorney General
By: Thomas P. Carafa, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||February 21, 2020|
|See also (multicaptioned case)|
Defendant moves to dismiss the claim pursuant to CPLR 3211 (a) (2) and (8) on the grounds both the notice of intention to file a claim and the claim fail to meet the pleading requirements of Court of Claims Act § 11 (b) and, in any event, the claim was untimely filed and served.
Claimant, a former inmate of the Department of Corrections and Community Supervision (DOCCS), seeks damages for "medical negligence" arising from DOCCS' alleged failure to properly and timely diagnose and treat a ruptured biceps tendon in his right arm. Claimant alleges the following in both his notice of intention to file a claim and the claim itself:
" 2. In or about June 2016 while at Gouvernor Correctional Facility [c]laimant's left knee gave out while he was performing his mandatory work assignment of cleaning the showers and he heard a popping sound to his right upper extremity bicep."
3. Notwithstanding continued complaints of excruciating pain and requests for an MRI and orthopedic consultation, [d]efendant failed to have an MRI performed until September 2, 2016. Claimant was not informed of the results of the MRI prior to him being released from the correctional facility on September 8, 2016.
4. Claimant received the results from the location on his own where the MRI was performed which indicated a torn biceps tendon" (defendant's Exhibit A, Notice of Intention to File a Claim, ¶¶ 2, 3; defendant's Exhibit B, Claim, ¶¶ 2, 3, 4).
The Court will first address defendant's contention that the notice of intention and claim fail to meet the pleading requirements of Court of Claims Act § 11 (b). Section 11(b) of the Court of Claims Act requires that a claim state "the time when and the place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and, [with certain exceptions] . . . the total sum claimed." The State's waiver of sovereign immunity is conditioned upon compliance with the specific conditions to suit set forth in article II of the Court of Claims Act, which include the pleading requirements set forth in § 11 (b) (Court of Claims Act § 8; Lepkowski v State of New York, 1 NY3d 201 ; Davis v State of New York, 64 AD3d 1197 [4th Dept 2009], lv denied 66 AD3d 1504 [4th Dept 2009], lv denied 13 NY3d 717 ). The statutory requirements conditioning suit must be strictly construed (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 ) and the failure to abide by the pleading requirements of the Court of Claims Act constitutes a jurisdictional defect requiring dismissal of the claim (Sommer v State of New York, 131 AD3d 757, 758 [3d Dept 2015]; Hargrove v State of New York, 138 AD3d 777 [2d Dept 2016]).
Defendant contends that both the notice of intention and the claim fail to meet the pleading requirements of Court of Claims Act § 11 (b) because they fail to allege the date the claim accrued. Although the date a claim accrues is often used interchangeably with the date a claim arose, the terms are not synonymous (Matter of Geneva Foundry Litig., 173 AD3d 1812, 1814 [4th Dept 2019]). The date the claim arose is the date of the "mishap" (id. at 1813) or other event giving rise to the claim (Demairo v State of New York, 172 AD3d 856 [2d Dept 2019] [claim arose on date of death]) whereas the timeliness of the claim is measured from the date the claim accrued (Court of Claims Act § 10 ; Matter of Geneva Foundry Litig., 173 AD3d at 1814). For example, a wrongful confinement claim arises on the date of the confinement but it does not accrue until the confinement terminates as it is not until that time that damages are reasonably ascertainable (Burks v State of New York, 119 AD3d 1302 [3d Dept 2014]; Green v State of New York, 65 Misc 3d 543 [Ct Cl, 2019]). Here, claimant alleges that he injured his bicep in June of 2016, that DOCCS failed to perform an MRI examination until September 2, 2016, and that it was not until some time after his release from prison on September 8, 2016 that he learned the results of the MRI, which indicated a torn biceps tendon. In an action for medical malpractice, the claim accrues (and arises) on the date of the alleged wrongful act or omission (Matter of Daniel J. v New York City Health & Hosps. Corp., 77 NY2d 630, 634 ). While the continuous treatment doctrine, codified in CPLR 214-a (see Borgia v City of New York, 12 NY2d 151 ), provides a stay of the statutory limitations "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" (id. at 155; see also McDermott v Torre, 56 NY2d 399, 405 ; Young v New York City Health & Hosps. Corp., 91 NY2d 291, 296 ), it does not alter the date the claim accrued (Matter of Daniel J., supra). In this case, claimant failed to allege the date the claim accrued, i.e., the date the malpractice was committed, as required by Court of Claims Act § 11 (b). "If the claimant fails to specify the dates relevant to the elements of the claim or provides only a broad range of dates, the claim is jurisdictionally defective and properly dismissed" (Matter of Geneva Foundry Litig., 173 AD3d 1812, 1813-1814 [4th Dept 2019]). Nowhere in either the notice of intention or the claim is the date of the malpractice (date by which an MRI examination should have been performed) alleged. Instead, claimant alleges in only the most conclusory manner that he was injured in June 2016 and "has been continuously treated for the injury to his biceps tendon" (defendant's Exhibits A and B, ¶ 8). Claimant's failure to specify the date the claim arose or any facts from which the date the claim arose could be discerned renders the claim jurisdictionally defective.
Moreover, to the extent claimant seeks the benefit of the continuing treatment doctrine, the last date of treatment alleged in the claim is September 2, 2016 when an MRI examination was finally performed.(1) Even if it were assumed that treatment related to the claimant's biceps injury continued up to and including this date, the claim filed and served on September 6, 2018 is untimely as it was filed and served more than two years from the date of the claimant's last treatment for his bicep injury (Court of Claims Act § 10 ; McDermott v Torre, 56 NY2d at 405; Borgia v City of New York, 12 NY2d at 155).
Accordingly, defendant's motion is granted and the claim is dismissed.
February 21, 2020
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
1. Inasmuch as defendant submitted claimant's medical records for the first time in reply and its motion is directed to the adequacy of the pleadings pursuant to CPLR 3211, the Court is constrained to decide the matter without reference to the claimant's medical records.