STATE OF NEW YORK COURT OF CLAIMS -------------------------------------------------------------------------X Claim No.: 129350 Motion No.: M-91379 CARL GOVERNALE and CHRISTINE GOVERNALE, Lopez-Summa, J. Claimants, Reply Affirmation in further - against - Support of Claimants' Cross STATE UNIVERSITY OF NEW YORK AT STONY BROOK HOSPITAL Defendant. -------------------------------------------------------------------------X DOREEN J. SHINDEL, being an attorney duly licensed and admitted to practice law in and before the Courts of the State of New York, affirms the following to be true under the penalties of Perjury: 1. I am Of Counsel to the Law Firm of Christopher S. Olson, Esq., and by virtue of a review of the file maintained herein, I am familiar with the facts and circumstances of this case. 2. I submit this Affirmation in Reply to Defendant's Opposition to crossmotion and in further support thereof. I TIME TO SERVE OPPOSITION PAPERS IS TIMELY SERVED WHEN THE SERVING OF A CROSS-MOTION IS TIMELY MADE 3. CPLR 2215 states, in pertinent part, states the following. "At least three days prior to the time at which the motion is noticed to be heard, or seven days prior to such time if demand is properly made, pursuant to subdivision (b) of rule 2214, a party may serve upon the moving party a notice of a cross-motion demandine relief with or without supporting papers; " Page 1 of 5 1 of 5
4. In the instant case, January 3, 2018 is the return date for defendant's motion. Pursuant to CPLR 2215, a plaintiff can serve a cross motion three (3) days prior to the return date. In this case, claimants served their cross-motion on December 28, 2017, within five (5) business dates of the return date. 5. In the instant case, if the claimants did not make a cross motion but instead simply opposed the papers of the moving party, claimants would be required to serve opposition papers by December 27, 2017. 6. However, since cross-motions generally require a future return date, the original return date is generally changed to a later date giving both parties an opportunity to oppose and reply. 7. In the instant case, defendant complains of untimeliness, but nonetheless was able to serve their Reply and Opposition papers prior to the return date. Consequently, defendants argument is moot. II THE CONTINUOUS TREATMENT DOCTRINE DOES NOT NEED TO BE PLEAD IN THE NOTICE OF INTENTION TO FILE A CLAIM 8. Defendant argues that because the continuous treatment doctrine was not alleged in their Notice of Intention to file a Claim or the Claim, it must be dismissed. However, defendant cites no statutory or case law authority to support their ground. That's because there is none. 9. Instead, the statute talks about circumstances that can toll the statute of limitations for a personal injury claim. The court of claims act does not specifically require a claimant to allege in either the Notice of Intention to file a Claim or a Claim to allege the doctrine of continuous Page 2 of 5 2 of 5
treatment. 10. Rather, the defendant generally raises the statute of limitations defense barring as barring the Claim from being raised. Then following some discovery (i.e. receipt and review of physician's records), if there were no continuous treatment to toll the statute of limitations making the Notice of Intention to file a Claim or Claim untimely, the defendant moves to dismiss. 11. In the instant case, the defendant did exactly that. In response to claimants filing of a Claim, the defendant's moved pre-answer to dismiss Complaint based on the statute of limitations defense. 12. In response, the claimants provided this court with proof of continuous treatment by the defendant tolling the statute of limitations to April 30, 2017. Consequently, the defendant's argument is without merit or legal authority and must be disregarded. III CLAIMANTS FILING OF THEIR CLAIM IN FEBRUARY OF 2017 WAS BEFORE APRIL 30, 2017 AND WAS TIMELY MADE AND TIMELY SERVED ON THE ATTORNEY GENERAL 13. In the instant case, claimants are alleging that although the Attorney General's office was not personally served, they were properly served and the filing of the Claim was timely. Claimants further argue that because the Notice ofintention to file a Claim contains all the necessary elements of a Claim it should be converted. 14. Claimants further allege that if their Claim were treated like a Notice of Intention to file a Claim and the Claim was timely filed in February of 2017, technically there would be no delay in the time to file. That is because the Notice ofintention to file a Claim regardless of when it was Page3of 5 3 of 5
converted satisfied the elements of a Claim. 15. In February of 2017, when the Notice of Intention to file the Claim was accomplished not only was the claim timely filed but it was personally served on the Attorney General's office, who acknowledge receipt. 16. The error to personally serve the Attorney General's office was due to our paralegal's reliance on a conversation with someone at the AG's office. Specifically, sometime in or around February of 2017, our paralegal, Patricia Bono, called the AG's office to inquire whom she should personally serve Claim on. 17. Ms. Bono was told that if the complaint is electronically filed with the Court of Claims, the AG's office is deemed served. Ms. Bono requested the source of the information she was provided regarding service upon the Attorney General being proper via electronic filing. 18. In response, Ms. Bono was cited Section 206.5 aa(a)(c). Section206.5 aa (a), states in pertinent part the following. "All designated claims in the Court of Claims shall be subject to electronic Title." filing in accordance with the provisions of section 202.5-b of this 19. Section 206.5 aa (c), states in pertinent part the following. "..... Upon designation of a category of claims by the Presiding Judge pursuant to this subdivision, the Attorney General shall be deemed, for all purposes under section 202.5-b, to have agreed to service of all papers upon him or her by electronic means for those claims I which the section." claimant consents to proceed pursuant to such Annexed hereto as claimants Exhibit "1", is the Affidavit of Patricia Bono, paralegal. 20. Claimants provided this court with proof that our office electronically filed their Claim(see Exhibit"6" Exhibit attached to Opposition and Affirmation papers) as well as proof Page4of 5 4 of 5
that the Court of Claims served the Attorney General's office with Claim on March 13, 2017 (see Exhibit "7" attached to claimant's Opposition and Affirmation papers). 21. Given the above, it is claimants position that the Attorney General was properly served on March 13, 2017 and timely served with the statue of limitations for personal injury. WHEREFORE, the Claimants respectfully reiterate their request that this Court grant their cross motion in its entirety, and issue an order holding that Notice of Intention to file a Claim be converted to a Claim; that Claim was timely made; granting claimants request to amend their claim to state a claim of loss of services, consortium, etc., and granting claimants request to extend their time to properly serve the Attorney General with the Amended Complaint and Certificate of Merit and, for such other and further relief as the court deems just and proper. Dated: Selden, New York January 2, 2018 Respectfully Submitted, CHRISTOPHER S. OLSON, ESQ. BY e if N. SHIND r, ESQ., Of Counsel Attorneys for Claimants 325 Middle Country Road, Suite D Selden, New York 11784 (631) 656-8044 Page5of 5 5 of 5