CURRY v. STATE (2025)

MEMORANDUM AND ORDER

Appeal from an order of the Court of Claims (Jeanette Rodriguez–Morick, J.), filed May 3, 2023, which denied claimant's application pursuant to Court of Claims Act § 10(6) for permission to file a late claim.

Beginning in 2006 through 2022, claimant, an incarcerated individual, was seen by numerous dentists in several correctional facilities.  At different points in time, claimant received temporary dental fillings and, eventually, extractions of four of his teeth.  In 2013 and 2014, claimant filed grievances with the Department of Corrections and Community Supervision (hereinafter DOCCS) asserting that he had received deficient dental care.  Claimant did not file any further grievances after that point.

In September 2022, claimant commenced this instant claim alleging, among other things, dental malpractice.  Claimant asserted that the temporary fillings he received in certain specific teeth were not timely removed, which caused him “extreme pain, infections, deterioration and delayed extractions.”  In connection with his filing, claimant sought permission to file a late claim, arguing that his claim is timely by virtue of the continuous treatment doctrine.  The Court of Claims denied the motion, determining that the claim exceeded the 21/212-year statute of limitations on dental malpractice actions and the continuous treatment doctrine did not apply to his claim.  Timing notwithstanding, the court further determined that the claim lacked merit.  Claimant appeals.

We affirm.  “[P]ermission to file a late claim may be granted, in the discretion of the Court of Claims, if a motion is made before the expiration of the statute of limitations applicable to an action against a private citizen” (Grasse v. State of New York, 228 A.D.3d 1028, 1029, 212 N.Y.S.3d 842 [3d Dept. 2024] [internal quotation marks and citation omitted];  see Court of Claims Act § 10[6]).  As relevant here, dental malpractice claims have a 21/212-year statute of limitations accruing from the time of the “act, omission or failure complained of” (CPLR 214–a;  see Ferrara–Carpenter v. Ormsby, 233 A.D.3d 1134, 1134, 223 N.Y.S.3d 388 [3d Dept. 2024]).  Claimant's assertions of malpractice encompass acts and omissions that occurred well beyond the 21/212-year statute of limitations (see CPLR 214–a;  McClurg v. State of New York, 204 A.D.2d 999, 1000, 613 N.Y.S.2d 71 [4th Dept. 1994], lv denied 84 N.Y.2d 806, 621 N.Y.S.2d 515, 645 N.E.2d 1215 [1994]), precipitating his effort to invoke the continuous treatment doctrine.  Based upon our review of claimant's submissions, we find that the doctrine does not apply.

“Under the continuous treatment doctrine, the limitations period does not begin to run until the end of the course of treatment if three conditions are met:  (1) the patient continued to seek, and in fact obtained, an actual course of treatment from the defendant physician during the relevant period;  (2) the course of treatment was for the same conditions or complaints underlying the plaintiff's medical malpractice claim;  and (3) the treatment is continuous” (Rhodes v. Van Valkenburg, 236 A.D.3d 838, 839, 229 N.Y.S.3d 563 [2d Dept. 2025] [internal quotation marks and citations omitted];  see Allende v. New York City Health & Hosps. Corp., 90 N.Y.2d 333, 338, 660 N.Y.S.2d 695, 683 N.E.2d 317 [1997];  Ferrara–Carpenter v. Ormsby, 233 A.D.3d at 1135, 223 N.Y.S.3d 388;  Easton v. Kellerman, 248 A.D.2d 913, 914, 670 N.Y.S.2d 618 [3d Dept. 1998]).  For the doctrine to apply when, as here, multiple medical providers are involved, “there must be an agency or other relevant relationship between the health care providers” (Allende v. New York City Health & Hosps. Corp., 90 N.Y.2d at 339, 660 N.Y.S.2d 695, 683 N.E.2d 317 [internal quotation marks and citations omitted];  see Dubose v. New York City Health & Hosps., 255 A.D.2d 234, 235, 680 N.Y.S.2d 95 [1st Dept. 1998], lv dismissed 93 N.Y.2d 848, 688 N.Y.S.2d 494, 710 N.E.2d 1093 [1999]).  Establishing such a relationship requires more than simply identifying a shared employer;  rather, a claimant must demonstrate some “relevant relationship between the allegedly negligent physician and the subsequent treating physician before the subsequent treatment is imputed to the initial physician for tolling purposes” (Ogle v. State of New York, 142 A.D.2d 37, 39, 535 N.Y.S.2d 190 [3d Dept. 1988];  see generally Allende v. New York City Health & Hosps. Corp., 90 N.Y.2d at 340, 660 N.Y.S.2d 695, 683 N.E.2d 317).

Claimant's treatment records submitted alongside his motion reflect that the only treatment date within the applicable statute of limitations was in August 2022.¹  Although the record indicates that the various dentists in six different facilities who had provided dental care to claimant since 2006 all worked as medical professionals for DOCCS, noting the lengthy gaps in between claimant's treatment on the specific teeth he identifies in his claim during the relevant period, there is no other connection that would tether them for the purpose of tolling the statute of limitations (see Young v. New York City Health & Hosps. Corp., 91 N.Y.2d 291, 296, 670 N.Y.S.2d 169, 693 N.E.2d 196 [1998];  Allende v. New York City Health and Hosps. Corp., 90 N.Y.2d at 340, 660 N.Y.S.2d 695, 683 N.E.2d 317;  Nykorchuck v. Henriques, 78 N.Y.2d 255, 259, 573 N.Y.S.2d 434, 577 N.E.2d 1026 [1991];  Mello v. Long Is. Vitreo–Retinal Consultant, P.C., 172 A.D.3d 849, 851, 99 N.Y.S.3d 414 [2d Dept. 2019];  Fraumeni v. Oakwood Dental Arts, LLC, 108 A.D.3d 495, 497, 968 N.Y.S.2d 561 [2d Dept. 2013];  Johanson v. Sullivan, 68 A.D.3d 1303, 1305, 891 N.Y.S.2d 184 [3d Dept. 2009];  Ogle v. State of New York, 142 A.D.2d at 39, 535 N.Y.S.2d 190).  Accordingly, as “the applicable limitations period [had] expired in this case, the court was without authority either to entertain a subsequent motion to extend the time to file a late claim, or ․ grant such relief” (Roberts v. City Univ. of N.Y., 41 A.D.3d 825, 826, 839 N.Y.S.2d 514 [2d Dept. 2007];  see Campos v. State of New York, 139 A.D.3d 1276, 1278, 33 N.Y.S.3d 479 [3d Dept. 2016]).  In light of our determination, claimant's remaining contentions are rendered academic.

ORDERED that the order is affirmed, without costs.

FOOTNOTES

1.   That treatment appears to encompass the extraction of tooth # 13.  According to his records, claimant received a filling in tooth # 13 in March 2008 and had no further treatment on that tooth until September 2019.

McShan, J.

Clark, J.P., Aarons, Ceresia and Fisher, JJ., concur.