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A.F. v. State

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


March 19, 2009

A.F., APPELLANT,
v.
STATE OF NEW YORK, RESPONDENT.

The opinion of the court was delivered by: Peters, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Calendar Date: February 18, 2009

Before: Mercure, J.P., Peters, Lahtinen, Kane and Malone Jr., JJ.

MEMORANDUM AND ORDER

Appeal from an order of the Court of Claims (Fitzpatrick, J.), entered January 31, 2008, which granted defendant's motion to dismiss the claim.

Claimant served a notice of intention to file a claim alleging that, on November 2, 2006, employees of defendant had improperly disclosed his confidential medical information (see Public Health Law § 2782). The notice of intention was received by the Attorney General on February 14, 2007. Defendant moved to dismiss the subsequently filed claim on the ground that the notice of intention had been untimely served. The Court of Claims granted the motion, prompting this appeal.

We affirm. Claimant does not dispute that the notice of intention was untimely if his claim accrued on November 2, 2006 (see Court of Claims Act § 10 [3]). Claimant argues that his claim actually accrued after that date because of later alleged disclosures of the confidential information at issue. Each disclosure gives rise to a separate claim (see Public Health Law § 2783 [1] [b]), however, and we agree with the Court of Claims that any subsequent disclosures were not "so interrelated [with the original disclosure] that they could not be separated for purposes of applying time limitations" (Mahoney v Temporary Commn. of Investigation of State of N.Y., 165 AD2d 233, 240 [1991]; see Augat v State of New York, 244 AD2d 835, 837 [1997], lv denied 91 NY2d 814 [1998]). As such, the Court of Claims lacked jurisdiction over the claim and it correctly granted defendant's motion to dismiss (see Matter of Magee v State of New York, 54 AD3d 1117, 1118 [2008]).

Claimant also argues that he should have been granted permission to file a late claim (see Court of Claims Act § 10 [6]), yet he failed to move for that relief before the Court of Claims (see Calderazzo v State of New York, 74 AD2d 954, 954-955 [1980]; Ton-Da-Lay, Ltd. v State of New York, 70 AD2d 742, 744 [1979], appeals dismissed 48 NY2d 629, 653 [1979], lv denied 48 NY2d 612 [1980]).

Mercure, J.P., Lahtinen, Kane and Malone Jr., JJ., concur.

ORDERED that the order is affirmed, without costs.

20090319

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