| Hatzfeld v State of New York |
| 2013 NY Slip Op 01657 [104 AD3d 1165] |
| March 15, 2013 |
| Appellate Division, Fourth Department |
| John Hatzfeld, Appellant, v State of New York,Respondent. (Claim No. 118925.) |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Paul Groenwegen of counsel), fordefendant-respondent.
Appeal from an order of the Court of Claims (Renee Forgensi Minarik, J.), enteredOctober 19, 2011. The order granted the motion of defendant to dismiss the claim anddismissed the claim.
It is hereby ordered that the order so appealed from is unanimously affirmed withoutcosts.
Memorandum: In this personal injury and medical malpractice action, claimantappeals from an order that, inter alia, granted defendant's motion to dismiss the claim onthe grounds that the negligence claims were untimely and that claimant failed to state acause of action for medical malpractice. Although claimant timely filed a written noticeof intention to file a claim for the alleged negligence of defendant based upon an incidentthat occurred on March 5, 2008 in which claimant fell from his upper bunk at the CayugaCorrectional Facility, he failed to comply with Court of Claims Act § 10 (3)because he did not file the claim with respect to that incident until September 10, 2010,more than two years after the claim's accrual. "Failure to comply with either the filing orservice provisions of the Court of Claims Act results in a lack of subject matterjurisdiction requiring dismissal of the claim" (Tooks v State of New York, 40 AD3d 1347, 1348 [2007],lv denied 9 NY3d 814 [2007]). The Court of Claims therefore properly dismissedthe claim insofar as it is based on the March 5, 2008 incident (see id.). Similarly,the court properly dismissed the claim insofar as claimant alleged that he was negligentlytransported to the hospital on September 16, 2008 inasmuch as he failed to file a noticeof intention to file a claim or a claim with respect to that incident within 90 days after theclaim's accrual (see § 10 [3]; see also Wilson v State of New York, 61 AD3d 1367, 1368[2009]).
Contrary to the contention of claimant, the continuous treatment doctrine does notrender his negligence claims timely. That doctrine applies only to an "action for medical,dental or podiatric malpractice" (CPLR 214-a). Also, although we agree with claimantthat Court of Claims Act § 10 (6) permits a court to allow a claimant to file a lateclaim, claimant seeks that relief for the first time on appeal, and thus his contention thathe should be afforded such relief is not properly before us (see A.F. v State of New York,60 AD3d 1222, 1223 [2009]; Calderazzo v State of New York, 74 AD2d954, 954-955 [1980]; see generally Ciesinski v Town of Aurora, 202 AD2d 984,[*2]985 [1994]).
With respect to that part of the claim alleging medical malpractice, we conclude thatclaimant failed to allege that there was a deviation from the standard of care by thehealthcare providers or that any such deviation caused his injuries. The court thereforeproperly dismissed the claim to that extent as well (see Parker v State of NewYork, 242 AD2d 785, 786 [1997]).
Finally, claimant contends for the first time on appeal that defendant's motion todismiss was untimely, and thus that contention is not properly before us (seeCiesinski, 202 AD2d at 985). Present—Centra, J.P., Peradotto, Carni,Sconiers and Whalen, JJ.