The State's motion for summary judgment is granted and the claim is dismissed. The claim sought damages resulting from dental services received in 2009 at the Dental Clinic of SUNY Buffalo. The Court determined that res judicata applied as claimant's first claim had previously been dismissed as time barred by the applicable statute of limitations. Alternatively, the claim was not timely filed and is jurisdictionally defective
|Claimant short name:||YIN|
|Footnote (claimant name) :|
|Defendant(s):||NEW YORK STATE|
|Footnote (defendant name) :|
|Judge:||J. DAVID SAMPSON|
|Claimant's attorney:||HONGXING YIN, Pro Se|
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
BY: Michael T. Feeley, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||June 30, 2020|
|See also (multicaptioned case)|
Claimant Hongxing Yin seeks monetary damages in claim no. 134356 for "the failure of implant" which allegedly occurred as a result of dental services he received between September and November of 2009 at the Dental Clinic at the State University of New York at Buffalo (University of Buffalo). In lieu of answering the claim, defendant moved for summary judgment dismissing claim no. 134356. Claimant opposed the motion.Procedural History
On November 15, 2010, claimant filed his first claim, claim no. 119163, for dental negligence and/or malpractice which allegedly occurred at the Dental Clinic at the University of Buffalo in September through November of 2009. Claimant's first claim against the State for treatment at the Dental Clinic was served upon the Buffalo Office of the Attorney General on May 5, 2011. According to claim no. 119163, the Dental Clinic at the University of Buffalo improperly removed a tooth for implant without telling claimant that he first needed gum treatment. During claimant's deposition conducted with respect to claimant's first claim, he testified that he last received treatment at the University of Buffalo Dental Clinic on November 19, 2009. In December of 2009, Claimant received a letter from the Dental Clinic terminating all treatment. Claimant's initial claim no. 119163 against the State of New York for dental treatment at the University of Buffalo Dental Clinic was dismissed by summary judgment as being jurisdictionally defective as it was untimely served (see Hongxing Yin v The State of New York, 58 Misc 3d 1205 [A] (Defendant's Exhibit B), affd 156 AD3d 1486 [4th Dept 2017], rehearing denied 159 AD3d 1509 [4th Dept 2018]). Claimant's present claim no. 134356 alleges the same acts of dental negligence/malpractice as alleged in his first claim. In fact, in paragraph 3 of schedule A attached to claimant's present claim no. 134356 (Defendant's Exhibit A),(1) claimant states: "Here the Claimant starts the Claim No. 119163 again."Law and Analysis
Under the doctrine of res judicata, once a claim is brought to a final conclusion, all other claims between the same parties involving the same transaction or series of transactions are barred even if based on different theories or seeking a different remedy (Matter of Hunter, 4 NY3d 260, 269 ). These principles apply with equal force when the first claim is dismissed as being time-barred by the applicable statute of limitations (Johnson v City of New York, 148 AD3d 1126 [2d Dept 2017]). Here, claimant's dental negligence/malpractice cause of action as asserted in his second claim involves the same parties and arises from the same operative facts as his dismissed first claim. Accordingly, claimant's present claim is barred by the doctrine of res judicata.
Even if res judicata was not applicable, claimant's claim no. 134356 would still have to be dismissed. Court of Claims Act §§ 10 (3), 10 (3-b) and 11(a)(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 and 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 (Dreger v New York State Thruway Auth., 81 NY2d 721 ; Finnerty v New York State Thruway Auth., 75 NY2d 721 ). 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]). Defendant alleges that the claim was not served within the requisite ninety (90) day period.
Apparently, no notice of intention to file a claim was ever served by the claimant. As a result, claimant's ninety (90) days within which to serve and file a claim was never extended. The second or present claim no. 134356 was personally served upon the Buffalo, New York Office of the Attorney General on January 8, 2020 and filed on January 27, 2020. An action accrues and the statute of limitations begins to run at the time of the commission of the alleged malpractice (Goldsmith v Howmedica, Inc., 67 NY2d 120 (1986). Similarly, an intentional tort accrues on the date of the action which comprises the intentional tort (Trayer v State of New York, 90 AD2d 263 [3d Dept 1982]). At paragraph 11 of claimant's Schedule A attached to claim no. 134356 (see Appendix A), claimant states that he underwent bone graft surgery at the University of Buffalo Dental Clinic in November 2009, and in December 2009, he received a letter from the Dental Clinic terminating all treatment (see Exhibit B, p.3). At the latest, claimant's claim whether based on negligence or dental malpractice accrued no later than December 31, 2009. As claim no. 134356 was not served or filed until January 2020, over ten years after the claim accrued, it is untimely and must be dismissed (Torres v State of New York, 107 AD3d 1471 [4th Dept 2013]; Ivy v State of New York, supra at 1191]).
In opposition to defendant's motion to dismiss, claimant alleges that his claim is not untimely pursuant to Court of Claims Act § 11, as he should be able to serve the Attorney General's Office with a claim or a "reviewed claim" before April 21, 2020. In this regard, claimant is misconstruing the Court of Claims Act. Apparently, claimant misreads section 11 to allow the service of a claim within ninety days, or approximately 3 months, after the filing of the claim. Since the claim was filed on January 21, 2020, claimant argues that he should have until April 21, 2020 to serve his claim. As noted before, however, section 11 of the Court of Claims Act requires that a claim be filed and served within ninety (90) days of accrual of the claim which here was December 31, 2009, at the latest. Accordingly, claim no. 134356 is untimely as it was filed and served years after the accrual of the claim.
Claimant further alleges in his opposing affidavit that he is entitled to "restart" dismissed claim no. 119163 based on the continuous treatment doctrine and on "Section 1448 of Title 28 regarding insufficient service of Claim No. 119163." 28 USCS § 1448 provides that in a removed case where service in the state court proceeding was incomplete or defective, service may be completed or a new process begun in the same manner as in cases originally filed in federal district court (Covanex, Inc. v Duvvada, 2015 U.S. Dist. LEXIS 164349, 2015 WL 8375211). Here, neither the original claim no. 119163 nor the present claim no. 134356 has been removed from the Court of Claims to Federal District Court. Moreover, the federal rules of civil procedure regarding service of process have no application to an action in the Court of Claims (Scott v The State of New York, UID No. 2018-053-563 [Ct Cl, Sampson, J., Nov. 20, 2018]; Edmundson v The State of New York, UID No. 2014-018-517 [Ct Cl, Fitzpatrick, J., June 13, 2014).
Claimant also relies on the continuous treatment doctrine to support his argument that his claim is not time barred. Under the continuous treatment doctrine, the prescribed time limitations may be 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" (Johanson v Sullivan, 68 AD3d 1303, 1304 [3d Dept 2009], quoting Iazzetta v Vicenzi, 200 AD2d 209, 211 [3d Dept 1994], lv denied 85 NY2d 857 ). Claimant alleges in paragraph 12 of Schedule A to the present claim (Appendix A) that the Dental Clinic "terminated the treatment in December 2009-2013." In the very next sentence of the same paragraph, claimant refers to "the final letter by UB Dental Clinic in December 2009" and further, states that he "transferred his case to Aspen Dental 2010." And in paragraphs 18-20 of Schedule A to the present claim, claimant alleges that he began dental treatment at the Dental Faculty of the University of Toronto (UT) in March 2015 and started the implant treatment in 2018 which, according to claimant, is not completed yet. As a result, claimant seems to be alleging that his claim has not yet accrued as treatment, albeit from several different providers, continues.
The continuous treatment doctrine "rests upon the belief that the best interests of a patient warrant continued treatment with an existing provider, rather than stopping treatment," as the existing provider "not only is in a position to identify and correct his or her malpractice, but is best placed to do so" (Rudolph v Jerry Lynn, D.D.S., P.C., 16 AD3d 261, 262 [1st Dept 2005], quoting McDermott v Torre, 56 NY2d 399, 408 ). Here, the continuing relationship of trust between claimant and the University of Buffalo Dental Clinic ended in November 2009 when claimant received his last treatment at the Dental Clinic or in December of 2009, at the latest, when the Dental Clinic sent claimant a letter terminated all treatment.
Based on claimant's allegations in his claim, there is no support for a finding that claimant "intended uninterrupted reliance" upon the University of Buffalo Dental Clinic's "observation, directions, concern, and responsibility for overseeing [claimant's] progress" (Lohnas v Luzi, 140 AD3d 1717, 1718 [4th Dept 2016], affd 30 NY3d 752 ). In fact, after the University of Buffalo Dental Clinic terminated all treatment with claimant in December of 2009, he sought treatment thereafter with Aspen Dental and, eventually, sought treatment at the University of Toronto Dental Clinic. Neither Aspen Dental nor the University of Toronto Dental Clinic is connected to the University of Buffalo Dental Clinic or the State University of New York system or the State of New York, and no agency or other relevant relationship is alleged by claimant. Any treatment claimant received from a provider not connected with the University of Buffalo Dental Clinic cannot extend claimant's time to file and serve his claim under the continuous treatment doctrine (see McDermott v Torre, 56 NY2d 399 ).
In addition, the initiation of the legal process severs the continuing relationship of trust in any patient-physician relationship (Garofolo v State of New York, 80 AD3d 858 [3d Dept 2011]). Here, claimant filed his first claim, dismissed claim no. 119163, on November 15, 2010 and served a copy on the Buffalo Office of the Attorney General on May 5, 2011. Thus, any continuing relationship of trust ended almost ten years ago with the initiation of the now dismissed claim no. 119163 and ended any continuous treatment tolling at that point (Toxey v State of New York, 279 AD2d 927 [3d Dept 2001]).Under any analysis, the continuous treatment doctrine did not extend claimant's time to file and serve a claim10 years after the end of treatment with the University of Buffalo Dental Clinic and the initiation of the legal process by the filing of the now dismissed claim no. 119163 on November 15, 2010 severed claimant's relationship with the State. Accordingly, claim no. 134356 is untimely and must be dismissed.
Finally, a dispute apparently arose in 2010 regarding University of Buffalo Dental Clinic's bill for services. According to paragraph 10 of Schedule A attached to claim no. 134356 (see Appendix A), "UB Dental School practiced Abusive Process at Police Department at University of Buffalo, and Malicious Prosecution at Student Wide Judiciary at University of Buffalo against the claimant in October 2010." Causes of action sounding in either Abuse of Process or Malicious Prosecution are intentional torts. As before noted, a claim for an intentional tort must be filed and served within ninety (90) days after accrual of the claim (Court of Claims Act § 10 [3-b]). Here, a cause of action for either malicious prosecution or abuse of process regarding a billing dispute would accrue, at the latest, at the termination of the underlying proceeding(s) (Williams v CVS Pharmacy, Inc., 126 AD3d 890 [2d Dept 2015]; Benyo v Sikorjak, 50 AD3d 1074 [2d Dept 2008]). According to the claim, the billing dispute occurred in October of 2010 and concluded when the University of Buffalo Dental Clinic dropped the charge and the bill against the claimant (see paragraph 14 of Schedule A attached to the claim). While the sketchy details of a cause of action for either a malicious prosecution or an abuse of process cause of action are not sufficiently pled, this Court's prior decision and order dismissing the first claim noted that the bill was dropped by the Dental Clinic on October 12, 2010 (Defendant's Exhibit B, p.3). As the present claim was filed and served more than ninety (90) days after October 12, 2010, the latest possible accrual date for either a malicious prosecution or abuse of process cause of action, these causes of action must also be dismissed as being untimely.
Insofar as claim no. 134356 was not filed and served within ninety (90) days after the accrual of any cause of action alleged in the claim, the claim is jurisdictionally defective, requiring dismissal of the claim (Torres v State of New York, supra at 147; Ivy v State of New York, supra at 1191. Accordingly, defendant's motion no. M-95362 is granted and claim no. 134356 is dismissed.
June 30, 2020
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims
The following were read and considered by the Court:
1. Notice of motion and supporting affidavit of Assistant Attorney General Michael T. Feeley sworn to February 13, 2020, with annexed Exhibits A-B;
2. Opposing affidavit of Hongxing Yin sworn to February 21, 2020, with annexed Exhibit A; and
3. Claim no. 134356 annexed to this decision as Appendix A.
1. Pages 2, 4 and 6 of Schedule A which is a part of claimant's claim no. 134358 as filed, are missing from the copy of the claim annexed to the supporting affidavit of Assistant Attorney General Michael T. Feeley as Exhibit A. Certain paragraphs from the missing pages appear to be discussed by both parties in their motion papers. Accordingly, the Court has annexed to this decision and order as Appendix A a complete copy of claim no. 134358.