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:

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 [*2]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^[FN1] (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., 81NY2d 721, 724 [1992]). A failure to comply with any provisions of Court of Claims Act §§ 10 and 11 is a jurisdictional defect compelling the dismissal of the claim (see Kolnacki v State of New York, 8 NY3d 277, 281[2007] ["(t)he failure to satisfy any of the (statutory) conditions is a jurisdictional defect"]; Criscuola v State of New York, 188 AD3d 645 [2d Dept 2020]). In an action for medical malpractice, a Notice of Intention to File a Claim must be served or a claim must be served and filed within 90 days after the accrual of the claim (Court of Claims Act 10 [3]). Under the continuous treatment doctrine, where there is a "continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure," the accrual of a medical malpractice claim is tolled until the last date of treatment (CPLR 214-a).

In the case at bar, the claim asserts that "[o]n or about December of 2019" claimant went to a doctor's appointment in reference to his medical condition (State's Ex. A, Claim ¶ 5). The claim further states, "[d]uring the consultation I complained of the pain and suffering I am going through and requested proper medical treatment. I explained to the doctor that this condition has been ongoing since arriving to this facility years prior . . . [a]ny and all treatment that has been provided has not given me any resolve to rectify the pain and suffering I experience on a daily basis" (id.). The claim also alleges that, "my requests to the medical department have been numerous . . . & yet this problem still exists even with the existing treatment that could have and would prevent any further pain and suffering" (id. at 6). The claim further alleges that claimant filed numerous grievances with the facility's Inmate Grievance Resolution Program (IGRP), dating back to April 13, 2017, regarding the State's allegedly inadequate and delayed medical treatment for claimant's knee (State's Ex. A, Claim ¶¶ 7-9 and Exs. A-C attached to the Claim).

The Court finds that the State's arguments that the claim was not timely commenced based upon an accrual date of April 10, 2018 are without merit. Rather, the Court finds the uncontroverted arguments advanced by claimant regarding the timeliness of his claim and the applicability of the continuous treatment doctrine to be persuasive. In that regard, the allegations of the claim indicate that claimant has been continuously seeking medical care and treatment for his knee and has filed several grievances with the IGRP in regard to the State's alleged failure to provide claimant with timely and adequate medical care and treatment to his knee since April 13, 2017 through December of 2019 (State's Ex. A, Claim ¶¶ 5, 7). Thus, the Court finds that, pursuant to the continuous treatment doctrine, the claim was timely commenced by the service and filing of a claim within 90 days after claimant's doctor's appointment in December of 2019 and that claimant's grievances filed with the IGRP did not interrupt the tolling of the accrual of claimant's medical malpractice claim (see Garofolo v State of New York, 80 AD3d 858, 860 [3d Dept 2011] [An IGRP grievance does not initiate any legal proceedings and therefore does not interrupt the tolling of the accrual of claimant's medical malpractice claim]).

Accordingly, the State's motion to dismiss Claim No. 1354376 is hereby DENIED.