Matter of Robinson v. State of New York

• Decision Date: 07 December 2006
• Docket Number: 99383.
• Citation: 826 N.Y.S.2d 461,2006 NY Slip Op 09098,35 A.D.3d 948
• Parties: In the Matter of ABE ROBINSON, Appellant, v. STATE OF NEW YORK, Respondent.
• Court: New York Supreme Court — Appellate Division

35 A.D.3d 948

826 N.Y.S.2d 461

2006 NY Slip Op 09098

In the Matter of ABE ROBINSON, Appellant, v. STATE OF NEW YORK, Respondent.

99383.

Appellate Division of the Supreme Court of the State of New York, Third Department.

Decided December 7, 2006.

Appeal from an order of the Court of Claims (Collins, J.), entered September 28, 2005, which denied claimant's application pursuant to Court of Claims Act § 10 (6) for permission to file a late notice of claim.

CARPINELLO, J.

In the first week of January 2005, claimant, an inmate at Great Meadow Correctional Facility in Washington County, sought medical treatment for pain and swelling in his neck area. After examination, a mass was surgically removed from claimant's upper back and neck. Claimant subsequently developed a rash on his neck and back and was prescribed a topical medication. The rash worsened and spread, and in March 2005 claimant's prescription was changed to an oral medication. This treatment also proved unsuccessful and claimant was ultimately referred to a dermatologist at the Coxsackie Regional Medical Unit, who, in April 2005, diagnosed, among other things, an allergic reaction to the prescribed medication. In June 2005, claimant sought permission to file a late notice of claim against defendant for medical malpractice and other claims. The Court of Claims denied the application, prompting this appeal.

Initially, defendant concedes that, to the extent that claimant sought to file a claim alleging medical malpractice or negligence regarding the treatment he received for the skin rash, his claim was timely under the continuous treatment rule (see Borgia v City of New York, 12 NY2d 151, 155 [1962]; Ogle v State of New York, 142 AD2d 37, 38-39 [1988]). Thus, his motion for permission to file a late notice of claim, with respect to that treatment, was unnecessary and he should have been directed to file the claim.

We reach a different conclusion, however, with respect to the claims arising from the January 2005 surgical procedure. Application of the continuous treatment doctrine requires a showing that "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, supra at 155; see Young v New York City Health & Hosps. Corp., 91 NY2d 291, 295-296 [1998]). Given that claimant offered no medical proof linking the skin rash to the surgical procedure, that part of his claim was untimely and an application to file a late notice of claim was required.

"The Court of Claims is vested with broad discretion to grant or deny a motion for permission to file a late claim following the consideration of the statutory factors enumerated in Court of Claims Act § 10 (6)" (Matter of Gonzalez v State of New York, 299 AD2d 675, 675 [2002] [citation omitted]). This Court...