Opinion
# 2015-053-528 Claim No. 117711 Motion No. M-87052
12-22-2015
KENNETH J. PHELANv. THE STATE OF NEW YORK
KENNETH J. PHELAN, Pro Se HON. ERIC T. SCHNEIDERMAN New York State Attorney General BY: Wendy E. Morcio, Esq. Assistant Attorney General
Synopsis
Motion for summary judgment dismissing inmates medical malpractice claims granted, in part, and denied to the extent that the continuous treatment doctrine applies to certain injuries.
Case information
| UID: | 2015-053-528 |
| Claimant(s): | KENNETH J. PHELAN |
| Claimant short name: | PHELAN |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 117711 |
| Motion number(s): | M-87052 |
| Cross-motion number(s): | |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | KENNETH J. PHELAN, Pro Se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General BY: Wendy E. Morcio, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | December 22, 2015 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant Kenneth J. Phelan, an inmate proceeding pro se, alleges in claim no. 117711 that he received inadequate care and treatment for his migraine headaches while incarcerated at Lakeview Correctional Facility (Lakeview) and at Gowanda Correctional Facility (Gowanda). Defendant moves for summary judgment to dismiss the claim alleging that the Court lacks jurisdiction as the claim was untimely served. The defense of untimeliness was raised with particularity in Defendant's answer as required by Court of Claims Act § 11 (c). The Court granted Claimant's request for an adjournment of time to respond to Defendant's motion. In spite of the adjournment, Claimant failed to appear or otherwise oppose 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 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 90 days of accrual of the claim, unless the Claimant shall within the same 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 the claim. 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 the claim within the requisite 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 neither a notice of intention nor the claim was served within the requisite 90 day period. On August 26, 2009, Claimant served upon the Attorney General's office a notice of intention to file a claim by regular mail (Defendant's Exhibit A). On October 22, 2009, Claimant served a second notice of intention to file a claim upon the Attorney General's office by certified mail, return receipt requested (Defendant's Exhibit B). Then on November 19, 2009, Claimant served the claim upon the Attorney General's office (Defendant's Exhibit C).
According to paragraph 2 of the claim, Claimant was denied adequate medical care between June 2, 2009 and July 10, 2009 while incarcerated at Lakeview. Defendant correctly argues that the first notice of intention served on August 26, 2009 was a nullity and did not extend Claimant's time to serve a claim as it was inappropriately served by regular mail (Langner v State of New York, 65 AD3d 780 [3d Dept 2009]). Defendant further argues that the second notice of intention served on October 22, 2009 did not extend Claimant's time to serve a claim as it was not served within 90 days of July 10, 2009, when the claim arguably accrued. According to Defendant, insofar as neither of Claimant's notices of intention were appropriately and timely served within 90 days of accrual, Claimant did not benefit from any extension of time, making the claim served on November 19, 2009 untimely, and requiring dismissal of the claim.
Generally, an action for medical malpractice accrues on the date of the alleged malpractice (Nykorchuck v Henriques, 78 NY2d 255 [1991]). An exception is made, however, 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" (see Kelly v State of New York, 110 AD2d 1062 [4th Dept 1985], quoting Borgia v City of New York, 12 NY2d 151, 155 [1962]). Under the "continuous treatment" doctrine, 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]).
In a prison setting, it is not necessary for the inmate to have been seen by the same physician or even to receive treatment at the same facility for the continuous treatment exception to apply as inmates have no control over which medical practitioner they see or over their movement from one facility to another (Kelly v State of New York, 110 AD2d 1062 [4th Dept 1985]). Here, Claimant alleges that he continued to seek medical care and treatment for his migraine headaches and sinus condition from medical practitioners employed by the State at Lakeview and Gowanda. In determining this motion for summary judgment, this Court must afford a liberal construction of the Claim, accept the Claimant's allegations as true, and afford him the benefit of every possible favorable inference (see Parker v State of New York, 242 AD2d 785 [1997]). Accordingly, the allegations in the claim sufficiently raise a question of fact to defeat Defendant's motion regarding the application of the continuous treatment doctrine relating to Claimant's complaints of migraine headaches and a sinus condition, A different result, however, occurs with respect to Claimant's isolated complaint regarding the loss of his big toe nail which does not qualify under the continuous course of treatment doctrine since the only reference to this condition allegedly occurred on July 9, 2009.
The continuous treatment doctrine ends with the initiation of the legal process which in this case was the service of the first notice of intention to file a claim (Garofolo v. State of New York, 80 AD3d 858 [3D Dept 2011]). Claimant's first notice of intention was served on August 26, 2009. While this notice of intention was a nullity as it was served by regular mail, it did serve to sever "any continuous relationship of trust in the physician-patient relationship" (Toxey v State of New York, 279 AD2d 927, 929 [3d Dept 2001], lv denied 96 NY2d 711 [2001]). Thus, it was incumbent upon Claimant to serve a notice of intention or a claim upon the Attorney General within 90 days of August 26, 2009. The second notice of intention was appropriately served by certified mail, return receipt requested on October 22, 2009, within 90 days of the end of the continuous treatment tolling (Id. at 929). This second notice of intention complained of inadequate care and treatment of Claimant's migraine headaches and sinus condition from May 29, 2009 through September 21, 2009, thus requiring that a claim be filed and served within two years of service of the second notice of intention. The claim sufficiently alleges a continuous course of treatment through September 21, 2009 for the same sinus and migraine headache condition alleged in the notice of intention. Accordingly, the claim was timely served on November 19, 2009.
Insofar as the notice of intention served on October 22, 2009 attempted to allege either a medical negligence or medical malpractice cause of action based on the alleged failure of medical personnel to treat or care for Claimant's lost big toe nail which occurred on July 9, 2009, it is untimely as there is no continuous course of treatment established regarding this injury. Thus, the notice of intention served on October 22, 2009 was untimely as it was served more than 90 days after July 9, 2009, when any claim for the big toe injury accrued.
Based on the foregoing, Defendant's motion no. M-87052 is granted and claim no. 117711 is dismissed only to the extent that Claimant attempts to assert a medical negligence or medical malpractice claim based on the loss of his big toe nail. Defendant's motion is denied to the extent that Claimant has sufficiently raised a question of fact as to the applicability of the continuous treatment doctrine for a cause of action for negligence or medical malpractice relating to complaints of migraine headaches and a sinus condition. The following were read and considered by the Court: 1. Notice of motion and affidavit of Assistant Attorney General Wendy E. Morcio sworn to July 14, 2015, with annexed Exhibits A-E; 2. Letter from Claimant received July 16, 2015; 3. Affidavit of Service from Claimant received August 3, 2015.
December 22, 2015
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims