Gang v. State

• Decision Date: 08 November 2019
• Docket Number: CA 19–00453,966
• Citation: 177 A.D.3d 1300,113 N.Y.S.3d 423
• Parties: Joshua GANG, Claimant–Appellant, v. STATE of New York, Defendant–Respondent. (Claim No. 127939.)
• Court: New York Supreme Court — Appellate Division

177 A.D.3d 1300
113 N.Y.S.3d 423

Joshua GANG, Claimant–Appellant,
v.
STATE of New York, Defendant–Respondent.

(Claim No. 127939.)

966
CA 19–00453

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: November 8, 2019

BROWN CHIARI LLP, BUFFALO (ERIC M. SHELTON OF COUNSEL), FOR CLAIMANT–APPELLANT.

LETITIA JAMES, ATTORNEY GENERAL, ALBANY (KATHLEEN M. TREASURE OF COUNSEL), FOR DEFENDANT–RESPONDENT.

PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, DEJOSEPH, AND CURRAN, JJ.

MEMORANDUM AND ORDER

177 A.D.3d 1300

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the cross motion is denied and the claim is reinstated, and the motion is granted and the 3rd through 13th affirmative defenses are dismissed, and claimant is granted leave to amend the claim upon condition that claimant shall serve the amended claim within 30 days of service of the order of this Court with notice of entry.

Memorandum: Claimant commenced this action seeking damages for injuries that he sustained as a result of defendant's alleged medical malpractice while claimant was an inmate in a correctional facility. In his notice of intention to file a claim ( [notice of intent] see Court of Claims Act § 10[3] ), which was filed and served on August 22, 2014, claimant alleged that he sustained an injury to his "left hip" as a result of numerous acts of medical malpractice "on or about May 28, 2014 at Collins Correctional Facility located on Middle Road, Collins, New York." Claimant alleged that, following hip replacement surgery, he developed a severe infection at the location of the incision site and that defendant's agents committed malpractice in failing to treat his infection properly while monitoring that incision site during follow-up appointments. Claimant contends that, as a result of the alleged malpractice, he was forced to undergo numerous surgical procedures to irrigate the site and remove the "purulent, infected tissue."

In his claim, filed and served on May 12, 2016, claimant reiterated the various allegations of malpractice but instead stated that the malpractice "occurred commencing on or about May 20, 2014 ... and continued for several days and/or weeks

177 A.D.3d 1301

thereafter." He also alleged that the malpractice involved his "right hip."

113 N.Y.S.3d 426

Defendant answered, raising affirmative defenses that the Court of Claims lacked personal and subject matter jurisdiction due to the fact that the claim asserted different dates and different injuries from the notice of intent. Claimant thereafter filed a motion seeking to dismiss 11 of the 13 affirmative defenses and for leave to amend the claim to correct the location of the injury, contending that the injury was to his left hip. With respect to the inconsistent accrual dates, claimant contended in his motion that defendant's medical records established that the malpractice occurred prior to May 21, 2014. He also contended that, due to defendant's continuous treatment for the injuries, his "claims of malpractice would relate back to the first date of treatment" for the hip "or at the very latest, May 21, 2014." Alternatively, claimant sought leave to amend the claim to reflect the same onset date as the notice of intent.

Defendant cross-moved for summary judgment dismissing the claim, contending that, if the accrual date was May 20 or May 21, 2014, then the notice of intent filed on August 22, 2014, was untimely (see Court of Claims Act § 10[3] ) and did not provide the Court of Claims with personal or subject matter jurisdiction. Defendant further contended that the notice of intent was jurisdictionally defective because it set forth an incorrect accrual date in violation of Court of Claims Act § 11(b). In reply, claimant contended that the accrual date listed in the notice of intent was the correct accrual date and that the erroneous date set forth in the claim did not retroactively render the notice of intent jurisdictionally defective. He thus sought permission to amend the claim to allege an accrual date of May 28, 2014. The court denied claimant's motion, granted defendant's cross motion and dismissed the claim. We now reverse.

Inasmuch as "suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed" ( Dreger v New York State Thruway Auth. , 81 N.Y.2d 721, 724, 593 N.Y.S.2d 758, 609 N.E.2d 111 [1992] ; see Lichtenstein v. State of New York , 93 N.Y.2d 911, 912–913, 690 N.Y.S.2d 851, 712 N.E.2d 1218 [1999] ; Matter of DeMairo v. State of New York , 172 A.D.3d 856, 857, 100 N.Y.S.3d 362 [2d Dept. 2019] ). Thus, the failure to comply with either Court of Claims Act § 10(3), concerning the timing of a notice of intent or a claim, or section 11(b), concerning the essential elements of a notice of intent or a claim, deprives a court of subject matter jurisdiction requiring dismissal of the claim (see

177 A.D.3d 1302

Lepkowski v. State of New York , 1 N.Y.3d 201, 209, 770 N.Y.S.2d 696, 802 N.E.2d 1094 [2003] ; Torres v. State of New York , 107 A.D.3d 1471, 1471, 965 N.Y.S.2d 914 [4th Dept. 2013] ; Hatzfeld v. State of New York , 104 A.D.3d 1165, 1166, 961 N.Y.S.2d 670 [4th Dept. 2013] ). A jurisdictionally defective notice of intent or claim "may not be cured by amendment" ( DeMairo , 172 A.D.3d at 857, 100 N.Y.S.3d 362 ; see Hogan v. State of New York , 59 A.D.3d 754, 755, 872 N.Y.S.2d 250 [3d Dept. 2009] ). The overriding purpose of sections 10 and 11 is to enable "the State to conduct a prompt investigation of a possible claim in order to ascertain the existence and extent of the State's liability" ( Schmidt v. State of New York , 279 A.D.2d 62, 66, 722 N.Y.S.2d 623 [4th Dept. 2000] ; see generally Lepkowski , 1 N.Y.3d at 207, 770 N.Y.S.2d 696, 802 N.E.2d 1094 ).

Addressing first the timeliness of the notice of intent, we agree with claimant that the notice of intent complied with Court of Claims Act § 10(3), which provides that a notice of intent or claim must

113 N.Y.S.3d 427

be filed and served "within ninety days after the accrual of such claim." Absent "legislative action to the contrary," the determination of when a claim accrued is a legal determination to be made by the courts ( B.F. v. Reproductive Medicine Assoc. of N.Y., LLP , 30 N.Y.3d 608, 613, 69 N.Y.S.3d 543, 92 N.E.3d 766 [2017], rearg. denied 31 N.Y.3d 991, 73 N.Y.S.3d 788, 789, 97 N.E.3d 397, 398 [2018]). Generally, a medical malpractice claim accrues on the date of the alleged malpractice, but the statute of limitations is tolled "until the...