Farid v State of New York

[*1] Farid v State of New York 2010 NY Slip Op 50960(U) [27 Misc 3d 1229(A)] Decided on May 12, 2010 Ct Cl McCarthy, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through June 4, 2010; it will not be published in the printed Official Reports.

Decided on May 12, 2010
Ct Cl

Mujahid Farid, Claimant(s)

against

The State of New York, Defendant(s)



117563



Claimant's attorney: Mujahid Farid, Pro Se

Defendant's attorney: ANDREW M. CUOMO

Attorney General of the State of New York

By: Paul F. Cagino, Esq., AAG

Christopher J. McCarthy, J.

For the reasons set forth below, Defendant's motion to dismiss, pursuant to CPLR 3211(a) (2), (5), (7) and (8) and Court of Claims Act §§ 10(3) and 11 is granted in part and denied in part.

The pro se Claim, which was filed with the Clerk of the Court on October 20, 2009, asserts that Claimant has been confined at Franklin Correctional Facility located in Malone, New York (Franklin) since September 2001. Claimant asserts that he has received improper and inadequate dental care at Franklin over the years because there is only one dentist for approximately 1600 inmates. He further states that he filed his first grievance with the Inmate Grievance Resolution Committee (IGRC), asserting that the State failed to provide prompt and appropriate dental care, on August 15, 2005. He asserts that he requested dental care on July 20, 2005 because of bleeding gums and pain. The Claim states that the problem was not addressed by the dental department at Franklin for three months. Claimant asserts that he filed another grievance with the IGRC on April 10, 2006 because of the dental department's failure to treat a toothache that developed on an unspecified date in March 2006.

The Claim asserts that it "is specifically directed at two incidents where [Franklin] failed to provide appropriate, prompt, and adequate dental care (January 2009 and May 2009)" (Claim, ¶ 3). On January 15, 2009, Claimant alleges he signed a form to obtain dental services because of pain in an upper right molar; that the tooth split in half on February 2, 2009; that he filed a grievance with the IGRC on February 13, 2009 and the grievance was denied on March 10, 2009 (Claim, ¶¶ 24-27). The Claim does not assert whether Claimant was ever seen by the Franklin dentist regarding the problem with this tooth. The Claim also alleges that, on May 30, 2009, Claimant signed a form to obtain dental services because of pain in a tooth that had been previously filled. Claimant filed a grievance with the IGRC on June 8, 2009, complaining about the failure to be provided with emergency dental care. On June 18, 2009, he was seen by a dentist, who prescribed a one-week dose of antibiotics and advised Claimant his tooth would be extracted the following week (Claim, ¶ 29). On July 1, 2009, Claimant went to the dental unit to have his tooth removed. He asserts that the dentist tried three times to extract his tooth and was [*2]unsuccessful; Claimant returned to the dentist on July 2, 2009 and the dentist was not able to anesthetize his gums and the dentist decided to arrange for "an outside oral surgeon" to extract the tooth (Claim, ¶¶ 30, 31). Claimant's grievance was denied on July 8, 2009 and the Central Office Review Committee upheld the decision on August 18, 2009 (Claim, ¶¶ 35, 36).

The Claim further alleges that, on September 25, 2009, Claimant was transferred to Upstate Correctional Facility in Malone, New York, so that the dental procedure could be performed; that Claimant was taken to the dental department, spoke to the dentist, the dentist noticed that Claimant's tooth was abscessed and he administered a series of Novocain injections to Claimant; that while the dentist was waiting for the Novocain to work, he read Claimant's medical chart and noticed that Claimant had been diagnosed with Hepatitis C. He also noted that the medical record reported that Claimant had high levels of enzymes and lesions on his body due to the Hepatitis C. Claimant asserts that the dentist advised that the tooth removal "was not a wise choice at the time" and that Claimant should first be treated for the Hepatitis C infection. Therefore, Claimant's tooth was not extracted (Claim, ¶¶ 32, 33 and 34).

Claimant asserts four causes of action: (1) denial of proper dental treatment; (2) the Department of Correctional Services failed to establish generally accepted standards of dental care and summarily rejected inmate complaints regarding the lack of dental care; (3) Defendant "violated applicable constitutional, statutory, and regulatory health and dental requirements" by failing to provide prompt and adequate dental care; and (4) Defendant discriminated against Claimant by refusing to extract his tooth because of his Hepatitis C status.

Defendant served a Verified Answer upon Claimant on December 2, 2009 and filed it with the Clerk of the Court on December 3, 2009. The State now moves to dismiss on several grounds including CPLR 3211(a)(2), (5), (7) and (8) and Court of Claims Act §§ 10(3) and 11.

Prior to filing the Claim with the Clerk of the Court and serving it upon the Defendant, Claimant asserts he served a Notice of Intention to File a Claim on Defendant on June 30, 2009 (Claim, ¶ 37). The document was received by Defendant on July 3, 2009 (Affirmation of Paul F. Cagino, Esq., ¶ 10). Court of Claims Act §11(a)(i) provides that service upon Defendant is complete when the Claim or Notice of Intention to File a Claim is received by Defendant. Therefore, the Notice of Intention was served on July 3, 2009.

Pursuant to Court of Claims Act § 10(3), the provision applicable to personal injury actions caused by negligence or unintentional torts of State employees, Claimant was required to file and serve his Claim within 90 days from the date of accrual unless a written Notice of Intention to File a Claim was served upon the Attorney General within such time period. In that case, the Claim itself was required to be filed and served upon the Attorney General within two years after the accrual of the Claim. In either case, Claimant was required to initiate action within 90 days of the Claim's accrual.

Court of Claims Act § 11(a)(i) provides that the Claim shall be filed with the Clerk of the Court and that a copy shall be served upon the Attorney General within the time period provided in Section 10 of the Court of Claims Act, either personally or by certified mail, return receipt requested. The statute further provides that service by certified mail, return receipt requested, is not complete until the Claim or Notice of Intention to File a Claim is received by the Attorney General. It is well established that failure to timely serve the Attorney General in strict compliance with Court of Claims Act § 11 gives rise to a jurisdictional defect (see Finnerty v [*3]New York State Thruway Auth., 75 NY2d 721, 723 [1989]; Matter of Dreger v New York State Thruway Auth., 177 AD2d 762, 763 [3d Dept 1991], affd 81 NY2d 721 [1992]; Suarez v State of New York, 193 AD2d 1037, 1038 [3d Dept 1993]).

Pursuant to Court of Claims Act § 11(c), however, any such defect is waived unless it is raised with particularity as an affirmative defense either by motion to dismiss prior to service of the responsive pleading, or in the responsive pleading itself (see Knight v State of New York, 177 Misc 2d 181, 183 [Ct Cl 1998]).

In its Verified Answer that was served upon Claimant on December 2, 2009, the State asserted as its sixth defense:

"This claim is untimely, and the Court lacks subject matter and personal matter jurisdiction, as to any incident that accrued prior to April 4, 2009, as no claim nor notice of intention to file a claim was/were received within 90 days as required by Court of Claims Act sections 10(3) and 11."

Court of Claims Act § 10 is more than a statute of limitations; it is a jurisdictional prerequisite to bringing and maintaining an action in this Court (DeMarco v State of New York, 43 AD2d 786 [4th Dept 1973], affd 37 NY2d 735 [1975]; Antoine v State of New York, 103 Misc 2d 664 [Ct Cl 1980]). Failure to timely comply with the statutory filing requirements of the Court of Claims Act constitutes a fatal jurisdictional defect requiring dismissal (Lichtenstein v State of New York, 93 NY2d 911, 913 [1999]; Buckles v State of New York, 221 NY 418 [1917]; Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]; Byrne v State of New York, 104 AD2d 782 [2d Dept 1984], lv denied 64 NY2d 607 [1985]). The Court cannot waive a defect in jurisdiction that has been timely raised (see Thomas v State of New York, 144 AD2d 882 [3d Dept 1988]). The defect asserted was timely and properly raised with particularity in the State's Answer as its sixth defense, in accordance with Court of Claims Act § 11(c).

Defendant asserts that only a cause of action that accrued within 90 days of the service of the Notice of Intention is timely. In other words, any cause of action that accrued prior to April 4, 2009, is untimely as it is more than 90 days prior to the service of the Notice of Intention. Defendant further asserts that, since each of the incidents listed in the Claim concerns a different dental issue, the continuous treatment doctrine is not applicable (Cagino Affirmation in Support, ¶ 10). In opposition to the motion, Claimant asserts he is not bringing his Claim under the continuous treatment doctrine but, rather, it "is more akin to a doctrine applied in employment law called the continuous violation doctrine', and it is usually called either the continual injury' or the continuing wrong' doctrine" (Affidavit in Opposition, ¶ 33). Claimant asserts, "[t]he continual wrong doctrine involves a situation where ongoing wrongs that are capable of being corrected are repeated at intervals" (id., ¶ 34). Claimant relies upon Mix v Del. and Hudson Ry. Co., (345 F3d 82 [2d Cir 2003], cert denied 540 US 1183 [2004], appeal after remand 164 Fed Appx 168 [2d Cir 2006]) for his assertion that the continuous wrong doctrine applies to the instant situation and, therefore, his Claim is timely.

The Court has reviewed the Second Circuit decision in Mix (supra). This Court finds that Claimant is correct in stating that the continuing tort doctrine applies to cases involving employer negligence. Claimant has not cited a case nor has the Court been able to find a case where the continuing tort doctrine has been applied to cases of medical malpractice or medical negligence, and the Court declines to apply that doctrine to the instant Claim. [*4]

Claimant asserts he is not relying on the continuous treatment doctrine and the Court concludes that the continuous treatment doctrine does not apply to the current situation, as it appears that each allegation of improper dental care relates to a discrete problem; i.e., each allegation relates to a different tooth or gum problem. Therefore, the Court concludes that any cause of action that accrued prior to April 4, 2009 is untimely pursuant to Court of Claims Act §§ 10(3) and 11(a)(i), as it accrued more than 90 days prior to the service of the Notice of Intention and is hereby dismissed. The Court concludes that the remainder of the Claim is timely served and filed. The Notice of Intention was served on July 3, 2009 and, according to defense counsel, relates to the toothache incident in May 2009.[FN*] Thus, the Notice of Intention was timely served within 90 days of accrual of that cause of action. The Claim also refers to a September 25, 2009 incident, where Claimant's tooth was not extracted, allegedly because Claimant had Hepatitis C. As stated above, the Claim was filed on October 20, 2009, well within 90 days of September 25, 2009. While Defendant has not stated the date it received the Claim, its Verified Answer was filed on December 3, 2009, also within 90 days of September 25, 2009. Thus, the State had to have been served with the Claim prior to that date. Therefore, the Court concludes that the cause of action relating to the September 25, 2009 incident also is timely.

Turning to the remainder of Defendant's motion, it is a motion pursuant to CPLR 3211(a)(2), (5), (7) and (8), not a motion for summary judgment pursuant to CPLR 3212 (see Defendant's Notice of Motion). No notice has been given by this Court pursuant to CPLR 3211(c) that would fairly advise the parties that the motion was being converted from a motion to dismiss to a summary judgment motion, or the issues that would be deemed dispositive of the action. Additionally, it cannot be said that the parties have deliberately charted a summary judgment course (Henbest & Morrisey v W.H. Ins. Agency, 259 AD2d 829 [3d Dept 1999]; Four Seasons Hotels v Vinnik, 127 AD2d 310, 318, 320 [1st Dept 1987]).

The Appellate Division, Third Department, in Griffin v Anslow (17 AD3d 889, 891-892 [3d Dept 2005]), stated:

It is well established that " [o]n a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction. We accept the facts as alleged in the [claim] as true, accord [claimants] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory [D]ismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law' " (Arnav Indus. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300, 303 [2001], quoting Leon v Martinez, 84 NY2d 83, 87-88 [1994] [citations omitted]; see Morgenthow & Latham v Bank of NY Co., 305 AD2d 74, 78 [2003], lv denied 100 NY2d 512 [2003]; Unadilla Silo Co. v Ernst & Young, 234 AD2d 754 [1996]). "However, [i]n those circumstances where the [claimants'] legal conclusions and factual allegations are flatly contradicted by documentary evidence, they are not presumed to be true or accorded every favorable inference, and the criterion becomes "whether the proponent of the pleading has a cause of action, not whether he has stated one" ' " (Morgenthow & Latham v Bank of NY Co., supra at 78, quoting Ark Bryant Park Corp. v Bryant Park Restoration Corp., 285 AD2d 143, [*5]150 [2001], quoting Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977] [citations omitted]; see also Biondi v Beekman Hill House Apt. Corp., 257 AD2d 76, 81 [1999], affd on other grounds 94 NY2d 659 [2000]).

Here, Claimant's allegations regarding the May 2009 and September 2009 dental appointments do not consist of base legal conclusions nor are they flatly contradicted by documentary evidence. The result is that, in determining this motion to dismiss, the Court must accept the allegations of the Claim as true and ignore opposing affidavits (Henbest & Morrisey v W.H. Ins. Agency, 259 AD2d 829, supra at 830; Matter of Morey v City of Gloversville, 203 AD2d 625, 626 [3d Dept 1994]).

The Court's function on a motion to dismiss is to determine whether the Claimant possesses a cause of action, not simply whether he has stated one. In addition, "the pleading is to be afforded a liberal construction We accept the facts as alleged in the [Claim] as true, accord [Claimant] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory [citations omitted]." (Leon v Martinez, 84 NY2d 83, 87-88 [1994]). While Claimant has labeled the fourth cause of action as one for discrimination, the Court finds that Claimant has stated a cause of action sounding in improper medical care or medical malpractice. Therefore, the portion of the motion to dismiss the fourth cause of action for failure to state a cause of action, pursuant to CPLR 3211(a)(7) is denied. The remainder of the motion is denied with respect to the allegations concerning the May 2009 and the September 2009 dental appointments. Footnotes

Footnote *:Neither party has submitted a copy of the Notice of Intention for the Court to review.