Castollanos v State of New York

[*1] Castollanos v State of New York 2006 NY Slip Op 52123(U) [13 Misc 3d 1234(A)] Decided on October 17, 2006 Ct Cl Scuccimarra, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 17, 2006
Ct Cl

Eddy Castollanos Claimant(s)

against

The State of New York, Defendant(s)



111743



Claimant's attorney:EDDY CASTOLLANOS, PRO SE

Defendant's attorney:HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERAL

BY: ELYSE J. ANGELICO, ASSISTANT ATTORNEY GENERAL

Third-party defendant's attorney:

Thomas H. Scuccimarra, J.

Defendant's Cross-Motion to Dismiss [CM-71939]

This motion is considered first because it disposes of the matter. In his Claim, Mr. Castollanos alleges that ". . . as far back as 1995 and continued to this present day . . . " Defendant's agents at various correctional facilities failed to timely and properly diagnose and treat a left wrist injury causing him to suffer pain and limitation of motion, among other things. [Claim No. 111743, ¶ 2]. He alleges he was properly diagnosed on April 13, 2005, but then failed to receive proper treatment, and then also alleges that his misdiagnosis "continues on today's date November 19, 2005." [Claim No. 111743, ¶¶ 3 and 2]. A document purporting to be a Notice of Intention to File a Claim was served by certified mail, return receipt requested on [*2]June 23, 2005. [Claim No. 111743, ¶5; Affirmation in Support of Defendant's Cross-Motion to Dismiss, ¶2, Exhibit A]. The Caim itself, however, was served by regular mail upon the Attorney General's Office on November 30, 2005. [Affirmation in Support of Defendant's Cross-Motion to Dismiss, ¶3].

Defendant moves to dismiss on several grounds. First, because the Claim was not served by certified mail, return receipt requested, no jurisdiction was acquired over the Defendant. Second, because the Claim was served well after the limitations period applicable to medical malpractice actions and/or negligence actions under the Civil Practice Law and Rules [See Civil Practice Law and Rules §§214-a and 214(5)]; as well as the time limitations of the Court of Claims Act. See Court of Claims Act §10(3). Finally, Defendant seeks dismissal because the Claim does not state a cause of action against the State of New York, because any purported negligence is attributable to the action or inaction of medical professionals at St. Agnes Hospital, not by State employees.

The filing and service requirements contained in §§10 and 11 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, 722-723 (1989); see also Welch v State of New York, 286 AD2d 496, 729 NYS2d 527, 529 (2d Dept 2001); Conner v State of New York, 268 AD2d 706, 707 (3d Dept 2000). Indeed, the statute provides in pertinent part ". . . [n]o judgment shall be granted in favor of any claimant unless such claimant shall have complied with the provisions of this section applicable to his claim . . . " Court of Claims Act §10.

Court of Claims Act §11(a) provides that ". . . a copy [of the claim] shall be served personally or by certified mail, return receipt requested, upon the attorney general . . ." within the time prescribed in Court of Claims Act §10; and service is complete when it is received in the Attorney General's Office. Court of Claims Act §11(a)(i). Service upon the Attorney General by ordinary mail is insufficient to acquire jurisdiction over the State, unless the State has failed to properly plead jurisdictional defenses or raise them by motion. Court of Claims Act §11(c); Edens v State of New York, 259 AD2d 729 (2d Dept 1999); Philippe v State of New York, 248 AD2d 827 (3d Dept 1998).

The Claimant has the burden of establishing proper service [Boudreau v Ivanov, 154 AD2d 638, 639 (2d Dept 1989)] by a preponderance of the evidence. See Maldonado v County of Suffolk, 229 AD2d 376 (2d Dept 1996). Regulations require that proof of service be filed with the Chief Clerk within ten (10) days of service on the defendant. 22 NYCRR § 206.5(a).

Here, the Claimant has not established that he served the Claim upon the Attorney General as required, and the Defendant has raised the jurisdictional issue in its Answer and in a timely motion. Thus Claimant has failed to establish, by a fair preponderance of the credible evidence, that the Attorney General was served with a copy of the Claim as required by Court of Claims Act §11(a). The Court, therefore, does not have jurisdiction over the Defendant, Defendant's cross-motion is hereby granted, and Claim Number 111743 is dismissed in all respects on that ground alone.

The other rationales presented by Defendant for dismissing the Claim, although meritorious, need not be discussed since the Claim is dismissed because of the failure to secure jurisdiction over the Defendant.

Notice of Intention as a Claim[*3]

In Reply papers Claimant asks that the Court treat the Notice of Intention he served by certified mail, return receipt requested on June 23, 2005 as a Claim pursuant to Court of Claims Act §10(8). Court of Claims Act §10(3) requires that a Claim be served and filed or Notice of Intention to File a Claim alleging negligence or other unintentional tort be served ninety (90) days after accrual. If a Notice of Intention is timely served, it may operate to toll this filing period an additional two years from the date of accrual. Remedies afforded a Claimant for failing to meet these deadlines include consideration of timely and properly supported motions to have the Court treat duly served Notices of Intention to File a Claim as actual Claims, or motions for permission to serve and file a late Claim. Court of Claims Act §§10(6) and 10(8). These applications are an exercise of discretion on the part of the deciding Court.

Court of Claims Act §10(8) provides in pertinent part that ". . . [t]he Court shall not grant . . . [an application for permission to treat the Notice of Intention as a claim] unless: it is made upon motion [FN1] before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules; the notice of intention was timely served, and contains facts sufficient to constitute a claim; and the granting of the application would not prejudice the defendant."

In terms of determining whether the application itself is timely, an action for medical malpractice against a citizen of the state must be brought "within two years and six months of the act, omission or failure complained of or last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure . . ." Civil Practice Law and Rules §214-a. Negligence actions alleging personal injury must be brought within three (3) years. Civil Practice Law and Rules §214(5).

Notably, unless the continuous treatment doctrine applies with respect to the causes of action for medical malpractice, only those acts occurring ninety (90) days before filing may be encompassed by a Notice of Intention or Claim. Under the continuous treatment doctrine, the time in which to bring a malpractice action is stayed "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." Borgia v City of New York, 12 NY2d 151, 155 (1962). The underlying principles behind the application of the doctrine are two-fold: first, it is in the patient's best interest to continue ongoing medical treatment and second, the initial medical practitioner is in the best position to identify and correct his own malpractice. See Nykorchuck v Henriques, 78 NY2d 255, 258-259 (1991); Toxey v State of New York, 279 AD2d 927, 928 (3d Dept 2001), lv denied 96 NY2d 711 (2001). Indeed, when a notice of intention is served - the "initiation of the legal process" - any continued relationship of trust between doctor and patient is severed. Toxey v State of New York, supra , at 928-929.

Moreover, when the continuing treatment is provided by someone other than the allegedly negligent practitioner there must be an agency or other relevant relationship between the health care providers. Meath v Mishrick, 68 NY2d 992, 994 (1986); McDermott v Torre, 56 NY2d 399, 403 (1982). Common ownership of correctional facilities by the Defendant is insufficient to [*4]trigger the continuous treatment doctrine without more. Allende v New York City Health and Hospitals Corporation, 90 NY2d 333, 340 (1997).

The Notice of Intention itself, measured against the requirements for the contents of a Claim set forth at Court of Claims Act §11(b), must sufficiently apprise the Defendant of the ". . . time when and place where such claim arose, [and] the nature of same, and the items of damage or injuries claimed to have been sustained and the total sum claimed.

In reviewing the Notice of Intention served herein, no date of accrual is alleged except that claimant states that he was "deprived of proper medical treatment from as far back as 1995 when the claimant broke his left wrist and as a result therein the claimant was sent to the outside hospital located at St. Agnes." [Affirmation in Support of Defendant's Cross-Motion to Dismiss, Exhibit A, ¶3]. He then recites the purported failure by medical staff at Sing Sing Correctional Facility to attend to his complaints of pain after the cast placed by St. Agnes personnel was removed, and the ultimate discovery by medical staff at Woodbourne Correctional Facility of a diagnosis of ". . . a 2.5 mm OLD ununited Avulsion Fracture of Ulnar Styloid Process. (sic)" [ibid. ¶¶4, 5, 6]. Mr. Castollanos asks for damages in the amount of One Million (1,000,000.00) Dollars, because of the lack of medical treatment and care. Other than the indication that he broke his wrist and was treated at an outside hospital in 1995, and that medical personnel at Sing Sing Correctional Facility removed the cast six (6) weeks later, no specific dates of accrual are alleged from which to measure whether the motion is timely and, significantly, to establish whether there is substantive compliance with the requirement that the Notice of Intention sufficiently apprise the Defendant of the ". . . time when and place where such claim arose, [and] the nature of same, and the items of damage or injuries claimed . . ." Court of Claims Act §11(b).

Reading the four corners of the Notice of Intention, assuming that any medical malpractice or negligence began with the removal of the cast by State personnel, and that the diagnosis at Woodbourne Correctional Facility ended the alleged malpractice or negligence, no time frame beyond six (6) weeks after some unspecified time in 1995 is stated. Even assuming the application is timely - which on its face it is not - no date of accrual is stated in the Notice of Intention served some ten (10) years after Claimant's cast was placed and removed.

After carefully reviewing the Notice of Intention, the Court finds that the dates contained therein are not specific enough, the information provided in the Notice does not comply with the statutory requirements for the contents of a Claim, and there is prejudice to the State under these circumstances. Thus Claimant's application to have the Court treat the Notice of Intention as a Claim is denied. See Court of Claims Act §11 (b). Additionally, based upon the only dates alleged in the Notice, the Notice of Intention cannot operate to toll the period of limitations because it was served more than ninety (90) days after any asserted causes of action accrued. Court of Claims Act §10.

Claimant's Motion to Compel Discovery [M-71855]

Denied as moot, given the Court's dismissal of the Claim herein. [*5]

Appendices: Footnotes

Footnote 1: The Court will not belabor the procedural flaw of Claimant's failure to make a motion for the requested relief, as opposed to raising the issue in Reply papers, although the application to treat the Notice of Intention as a Claim is required to be made on motion according to statute.