Gavarette v. State, Claim No. 134376

CourtNew York Court of Claims
Writing for the CourtWalter Rivera, J.
Citation2022 NY Slip Op 50409 (U)
PartiesJ. Gavarette Claimant v. The State of New York, Defendant.
Docket NumberClaim No. 134376
Decision Date28 March 2022

2022 NY Slip Op 50409(U)

J. Gavarette Claimant

The State of New York, Defendant.

Claim No. 134376

Court of Claims

March 28, 2022

Unpublished Opinion

Claimant's attorney: J. GAVARETTE Pro Se

Defendant's attorney: HON. LETITIA JAMES Attorney General for the State of New York, Christina Calabrese, Assistant Attorney General

Walter Rivera, J.

Motion to dismiss denied as claim was timely under continuous treatment doctrine.

The following papers numbered 1-2 were read and considered by the Court on the State's pre-answer motion to dismiss Claim No. 134376:

Notice of Motion, Attorney's Supporting Affirmation and Exhibit 1
Claimant's Reply to Pre-Answer Motion To Dismiss 2

A Notice of Intention to File a Claim and a claim were served upon the State on January 24, 2020 and the claim was filed with the Court on January 28, 2020 (State's Ex. A). The claim alleges that, during claimant's incarceration at Eastern NY Correctional Facility, claimant was deprived of adequate and timely medical care in the necessary treatment of claimant's medical condition pertaining to his right knee and that this caused claimant pain and suffering and a worsening of his medical condition (State's Ex. A, Claim ¶¶ 2-5). The State moves to dismiss the claim as untimely commenced more than 90 days after April 10, 2018, which the State argues is the date of accrual based upon paragraph 14 of the claim which the State interprets as the date that claimant was last seen by a specialist [1] (State's Affirmation ¶¶ 7, 11). Claimant opposes the motion and argues that the claim was timely commenced based upon the accrual date of claimant's medical appointment with a doctor "[o]n or about December of 2019" as alleged in paragraph 5 of the claim (State's Ex. A, Claim ¶ 5). Claimant also argues that the allegations of the claim dating more that 90 days prior to the commencement of the claim are timely pursuant to the continuous treatment doctrine which tolls the accrual date to the date of the last medical treatment in December of 2019. The State did not submit any reply papers and thus did not challenge the accrual date of December of 2019 or the applicability of the continuous treatment doctrine.

The service and pleading requirements set forth in Court of Claims Act §§ 10 and 11 are jurisdictional in nature and require strict compliance as a precondition of suit against the State (see Dreger v New York State Thruway Auth., 81N.Y.2d 721, 724...

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