Opinion
# 2017-018-841 Claim No. 116022 Motion No. M-90137
10-18-2017
SHARMIN TALBOT As Administrator of the Estate of JOHN WEBSTER v. STATE OF NEW YORK
FRANZBLAU DRATCH, P.C. By: Brian M. Dratch, Esquire ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Patricia M. Bordonaro, Esquire Assistant Attorney General
Synopsis
Defendant brings a motion to dismiss for untimely commencement - Court of Claims Act § 10 (3-a), and the statute of limitations (CPLR 214-a) pursuant to 3212. Defendant's burden to establish by prima facie proof that the time limitations for bringing this action have lapsed, a burden Defendant has not met (Edwards v Coughlin, 191 AD2d 1044 [4th Dept 1993]). Motion denied.
Case information
| UID: | 2017-018-841 |
| Claimant(s): | SHARMIN TALBOT As Administrator of the Estate of JOHN WEBSTER |
| Claimant short name: | Webster |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 116022 |
| Motion number(s): | M-90137 |
| Cross-motion number(s): | |
| Judge: | DIANE L. FITZPATRICK |
| Claimant's attorney: | FRANZBLAU DRATCH, P.C. By: Brian M. Dratch, Esquire |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Patricia M. Bordonaro, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | October 18, 2017 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant brings a motion to dismiss the claim for untimely commencement under the Court of Claims Act section 10 (3-a) and the statute of limitations (CPLR 214-a) pursuant to 3212. Claimant opposes the motion.
Defendant brings this motion under CPLR 3212 as well as 3211. The motion would be untimely under CPLR 3212 [a], however, issues of subject matter jurisdiction may be raised at any time.
John Webster died on December 31, 2011 and Sharmin Talbot was appointed as administrator of his estate on June 12, 2015 by the Onondaga County Surrogate's Court, and was substituted as Claimant. For ease of reference for purposes of this motion, the Court will refer to Mr. Webster as Claimant.
The claim sounds in medical malpractice for the alleged failure to properly diagnose and treat Claimant's invasive squamous cell carcinoma while he was an inmate in the custody of the State of New York. Claimant properly served a notice of intention upon the Syracuse Regional Office of the Attorney General on November 6, 2006. Claimant served a claim upon the New York City Office of the Attorney General on October 31, 2008.
The notice of intention alleges that the malpractice occurred at Oneida Correctional Facility and Five Points Correctional Facility and involved the State's failure to appreciate the significance of Claimant's medical history, failed to properly perform surgical removal of a cancerous lesion, failed to provide appropriate and timely follow-up care, failed to ensure the cancerous lesion was fully excised, failed to review and order appropriate tests, failure to make a timely referral to a specialist resulting in Claimant suffering damages.
The claim alleges that the wrongdoing commenced in November 2003 while Claimant was incarcerated at Five Points Correctional Facility. Claimant contends that a suspicious lesion was removed from the left side of his face at Cortland Memorial Hospital in Cortland, which was diagnosed as invasive squamous cell carcinoma with tumor. The State's negligence, according to Claimant, was its failure to diagnosis and treat the described carcinoma, resulting in subsequent lesions around the same site which were pathologically diagnosed as recurrent or residual carcinoma from the failure to remove all of the prior tumor. The State's alleged failures include failing to treat the cancerous lesion; failing to perform a timely and proper re-excision; failing to perform proper tests; failing to provide appropriate and prompt treatment; failure to remove timely and properly remove the lesion; failure to re-excise within clear margins; failure to timely review and order proper tests; failure to make proper and timely referrals to specialists; and negligently performing surgery.
Defendant interposed an answer to the claim and asserted six affirmative defenses. Defendant raised the statute of limitations and a lack of subject matter jurisdiction for failure to timely serve a notice of intention within 90 days of accrual and failure to serve and file the claim in accordance with Court of Claims Act section 10 and the statute of limitations.
In this motion, Defendant makes several arguments for dismissal. Defendant argues that the notice of intention and claim were not served within 90 days or 2½ years of November 2003, the date the State failed to timely diagnose and provide treatment for Claimant's melanoma, so the action is untimely. The State also contends Claimant has failed to allege sufficient facts to support application of the continuous treatment doctrine. It is Defendant's position that the failure to diagnose and treat Claimant's cancer is the absence of treatment - not a course of treatment - and, therefore, there is no tolling of the statute of limitations under CPLR 214-a.
Defendant bears the burden on this motion to establish by evidentiary facts that Claimant's notice of intention and claim are untimely (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Matter of Chung Li, 95 AD3d 881 [2d Dept 2012]). The pleading and evidence submitted must be viewed in the light most favorable to the non- moving party, giving that party the benefit of any favorable inference (Ruzycki v Baker, 301 AD2d 48, 50 [4th Dept 2002]; Boston v Dunham, 274 AD2d 708, 709 [3d Dept 2000]). If Defendant does not make out a prima facie case, the motion must be denied, regardless of the sufficiency of the opposing papers (Winegrad, 64 NY2d at 853).
Here, Defendant's submissions include an attorney affirmation with copies of the pleadings and a memorandum of law. These submissions do not establish the inapplicability of the continuous treatment doctrine to toll the statute of limitations. Claimant was an inmate in the custody and care of the State of New York before 2003 until after 2008. The allegations in the claim assert not only a failure to treat, but a failure to properly treat beginning in November 2003, with the invasive squamous cell carcinoma diagnosis and subsequent similar lesions. It is Defendant's burden to establish by prima facie proof that the time limitations for bringing this action have lapsed, a burden Defendant has not met (Edwards v Coughlin, 191 AD2d 1044 [4th Dept 1993]). The Court cannot find that Claimant did not receive ongoing care for his cancer from the State between 2003 and the date the notice of intention and claim were served.
As a result, Defendant's motion must be DENIED.
October 18, 2017
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims The Court has considered the following in deciding this motion: 1) Notice of Motion. 2) Affirmation of Patricia M. Bordonaro, Esquire, Assistant Attorney General, in support with exhibits attached thereto. 3) Defendant's Memorandum of Law in support. 4) Affirmation of Brian M. Dratch, Esquire, in opposition, with exhibits attached thereto. 5) Reply Affirmation of Patricia M. Bordonaro, Esquire, Assistant Attorney General, in support with exhibits attached thereto.