Garofolo v. State

Citation915 N.Y.S.2d 661,80 A.D.3d 858
PartiesSteven GAROFOLO, Appellant, v. STATE of New York, Respondent.
Decision Date06 January 2011
CourtNew York Supreme Court Appellate Division

Alexander J. Wulwick, New York City (Howard B. Sherman of Schneider, Kaufman & Sherman, P.C., New York City, of counsel), for appellant.

Eric T. Schneiderman, Attorney General, Albany (Michael S. Buskus of counsel), for respondent.

Before: MERCURE, J.P., PETERS, ROSE, MALONE JR. and GARRY, JJ.

GARRY, J.

Appeal from an order of the Court of Claims (Schaewe, J.), entered February 1, 2010, which granted defendant's motion to dismiss the claim.

In 2002, claimant, then an inmate at Woodbourne Correctional Facility in Sullivan County, began complaining of painin his right shoulder. Claimant alleges that he was treated unsuccessfully in prison medical facilities until 2004, and was then referred to an orthopedist who performed a total right shoulder replacement in 2005. Claimant's complaints continued, and the orthopedist ordered a second opinion. The second orthopedist performed two corrective surgeries on claimant's shoulder followed, in December 2006, by a third surgery to remove the original prosthetic device and perform another total shoulder replacement.1 Claimant alleges that he received follow-up treatment thereafter in January and February 2007, during which he communicated to the second orthopedist that he was continuing to experience symptoms, followed by testing performed in March 2007 and further testing ordered in April 2007.

In January 2007, claimant filed an inmate grievance seeking, among other things, an opinion from another orthopedist. The grievance was denied in March 2007. Claimant filed a notice of intention to file a claim for medical malpractice and negligence by defendant's agents and employees in May 2007, and thereafter filed this claim in July 2008. Respondent moved to dismiss the claim, and the Court of Claims granted the application on the ground that the claim was untimely. Claimant appeals.

Pursuant to Court of Claims Act § 10(3), a claim or a notice of intent to file a claim must be filed within 90 days of the accrual of a claim for negligence or unintentional tort against an officer or employee of defendant. Under the continuous treatment doctrine, the accrual of an inmate's claim for medical malpractice is tolled until the end of treatment 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' " ( Matter of Robinson v. State of New York, 35 A.D.3d 948, 949, 826 N.Y.S.2d 461 [2006], quotingBorgia v. City of New York, 12 N.Y.2d 151, 155, 237 N.Y.S.2d 319, 187 N.E.2d 777 [1962] ). However, "initiation of the legal process ... clearly sever[s] any continuing relationship of trust in the physician-patient relationship" ( Toxey v. State of New York, 279 A.D.2d 927, 929, 719 N.Y.S.2d 765 [2001], lv. denied 96 N.Y.2d 711, 727 N.Y.S.2d 696, 751 N.E.2d 944 [2001] ). Thus, the doctrine's tolling is interrupted by the filing of a notice of intention to file a malpractice claim ( see O'Connor v. State of New York, 15 A.D.3d 827, 828, 790 N.Y.S.2d 569 [2005], lv. denied 5 N.Y.3d 702, 799 N.Y.S.2d 772, 832 N.E.2d 1188 [2005]; Toxey v. State of New York, 279 A.D.2d at 928-929, 719 N.Y.S.2d 765).

Applying these principles, the Court of Claims found that claimant alleged sufficient facts to establish that the continuous treatment doctrine applied to the treatment he received fromdefendant's doctors, at least before 2007. The court further determined that the grievance filed in January 2007 marked the severance of claimant's trust and confidence in defendant's course of treatment, interrupting the tolling and thus making claimant's notice of intention to file a claim in May 2007 untimely, as more than 90 days had passed following filing of the grievance ( see Court of Claims Act § 10[3] ). We disagree and reverse.

The continuous treatment doctrine is based on the premise that a patient should not be forced to disrupt his or her relationship with a physician by initiating legal proceedings while treatment is ongoing, as the physician is in the best position to identify and correct his or her mistakes ( see Rizk v. Cohen, 73 N.Y.2d 98, 103-104, 538 N.Y.S.2d 229, 535 N.E.2d 282 [1989]; Toxey v. State of New York, 279 A.D.2d at 928, 719 N.Y.S.2d 765). Even in the context of a prison, where an inmate has no choice but to submit to the medical care furnished by defendant, the initiation of legal action "sufficiently memorializes the end of confidence in [the inmate's] course of...

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9 cases
  • Sacher v. State
    • United States
    • New York Supreme Court — Appellate Division
    • 14 December 2022
    ...in Court of Claims Act § 10(3)" ( Gang v. State of New York, 177 A.D.3d 1300, 1302, 113 N.Y.S.3d 423 ; see Garofolo v. State Of New York, 80 A.D.3d 858, 859, 915 N.Y.S.2d 661 ; Matter of Robinson v. State of New York, 35 A.D.3d 948, 949, 826 N.Y.S.2d 461 ). However, the defendant only chall......
  • Gang v. State
    • United States
    • New York Supreme Court — Appellate Division
    • 8 November 2019
    ...). That toll likewise applies to the time periods contained in Court of Claims Act § 10(3) (see e.g. Garofolo v. State of New York , 80 A.D.3d 858, 859–860, 915 N.Y.S.2d 661 [3d Dept. 2011] ; Matter of Robinson v. State of New York , 35 A.D.3d 948, 949, 826 N.Y.S.2d 461 [3d Dept. 2006] ). H......
  • J.J. v. State
    • United States
    • New York Court of Claims
    • 10 November 2021
    ...allegations as true, and accord the benefit of every possible favorable inference to the claimant" ( Garofolo v. State of New York , 80 A.D.3d 858, 860, 915 N.Y.S.2d 661 [3d Dept. 2011] ). The first issue for the Court to decide in a negligence claim asserted against the State of New York i......
  • Garofolo v. State
    • United States
    • New York Supreme Court — Appellate Division
    • 14 January 2016
    ...on its own negligence and for vicarious liability.Upon remittal following this Court's reversal with respect to a motion to dismiss (80 A.D.3d 858, 915 N.Y.S.2d 661 [2011] ), the Court of Claims considered defendant's motion for partial summary judgment dismissing the medical malpractice cl......
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