Opinion
# 2018-053-545 Claim No. 127939 Motion No. M-91994 Cross-Motion No. CM-92138
08-24-2018
JOSHUA GANG v. STATE OF NEW YORK
BROWN CHIARI, LLP BY: Eric M. Shelton, Esq. HON. BARBARA D. UNDERWOOD New York State Attorney General BY: Timothy J. Flynn, Esq. Assistant Attorney General
Synopsis
Claimant's motion to dismiss certain affirmative defenses is denied and defendant's cross-motion to dismiss the claim is granted as claimant's service of the initial notice of intention was a nullity and the second notice of intention was untimely and jurisdictionally defective.
Case information
| UID: | 2018-053-545 |
| Claimant(s): | JOSHUA GANG |
| Claimant short name: | GANG |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 127939 |
| Motion number(s): | M-91994 |
| Cross-motion number(s): | CM-92138 |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | BROWN CHIARI, LLP BY: Eric M. Shelton, Esq. |
| Defendant's attorney: | HON. BARBARA D. UNDERWOOD New York State Attorney General BY: Timothy J. Flynn, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | August 24, 2018 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant Joshua Gang alleges in claim no. 127939 that he sustained an infection to his right hip on May 20, 2014 due to medical negligence and medical malpractice while he was incarcerated at Collins Correctional Facility (Collins). Claimant moves by motion no. M-91994 to dismiss eleven of the thirteen affirmative defenses alleged in defendant's answer and for leave to amend his claim to change the location of the injury and to change the date of accrual of the claim. Defendant cross-moves by cross-motion no. CM-92138 for summary judgment dismissing the claim. The Court will address defendant's cross-motion first as it addresses jurisdictional issues.
PROCEDURAL BACKGROUND
On April 23, 2014, claimant, who was then proceeding pro se, served upon the Attorney General's Office a notice of intention to file a claim (Defendant's Exhibit A). In his notice of intention, the pro se claimant alleged medical negligence and improper medical care of a broken bone in his left foot which occurred at Collins on March 26, 2014. On August 22, 2014, claimant, now represented by the law firm of Campbell & Shelton LLP, personally served upon the Attorney General's Office a second notice of intention alleging that on May 28, 2014, the claimant sustained an infection in his left hip due to the medical negligence and medical malpractice of the staff at Collins (Claimant's Exhibit A).
On May 12, 2016, the claimant, now represented by the law firm of Brown Chiari LLP, personally served upon the Attorney General's Office a claim (Claimant's Exhibit B) for personal injuries to his right hip due to an infection allegedly caused by the medical negligence and medical malpractice of the staff at Collins on May 20, 2014. This claim was filed on May 13, 2016 as claim no. 127939.
DECISION
Court of Claims Act §§ 10 (3) and 11(a) (1) (i), provide that a claim for personal injuries caused by the negligence of an officer or employee of the State of New York must be filed and a copy served upon the Attorney General personally or by certified mail, return receipt requested, within ninety (90) days of accrual of the claim, unless the Claimant shall within the same ninety (90) day period serve upon the Attorney General personally or by certified mail, return receipt requested, a notice of intention to file a claim, in which event the claim must be filed and served within two (2) years after accrual of the claim. The filing and service requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]). The failure to timely and properly serve a notice of intention or a claim within the requisite ninety (90) day period divests the Court of jurisdiction, requiring dismissal of the claim (Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]; Bogel v State of New York, 175 AD2d 493 [3d Dept 1991]).
Court of Claims Act § 11 (b) requires that "[t]he claim shall state the time when and place where such claim arose, the nature of same, [and] the items of damage or injuries claimed to have been sustained. . ." Section 11 (b) further states that a "notice of intention to file a claim shall set forth the same matters except that the items of damage or injuries and the sum claimed need not be stated." Claims against the State are allowed only by the State's waiver of its sovereign immunity and in derogation of the common law. The State's waiver of its immunity is not absolute. Rather, it is contingent upon compliance with specific conditions placed on the waiver by the Legislature (Lepkowski v State of New York, 1 NY3d 201, 206 [2003]). The failure to strictly comply with the pleading requirements of Court of Claims Act §11 (b) amounts to a jurisdictional defect mandating dismissal of the claim, even though this may be a harsh result (Kolnacki v State of New York, 8 NY3d 277, 281 [2007]; Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]). Whether a claim complies with the pleading requirements of Court of Claims Act § 11 (b) is determined by whether there is "sufficient definiteness to enable the State to be able to investigate the claim promptly and ascertain its liability under the circumstances" (Triani v State of New York, 44 AD3d 1032 [2nd Dept 2007]).
Claim no. 127939 was filed and served approximately two (2) years after the claim accrued. In order for this claim to be timely, claimant had to have served personally or by certified mail, return receipt requested, a notice of intention within ninety (90) days of accrual of the claim with sufficient specificity to meet the pleading requirements of Court of Claims act § 11 (b). If, however, the notice of intention was defective, then it would not extend claimant's time to file and serve a claim and claim no. 127939 served on May 12, 2016 and filed on May 13, 2016 would be dismissed as untimely.
Defendant argues that the initial notice of intention served by the pro se claimant on April 23, 2014 was served by regular mail and was, thus, a nullity. This defense was raised with particularity in defendant's answer. Attached to its cross-motion as defendant's exhibit A is a copy of the envelope in which the pro se claimant served his April 23, 2014 notice of intention. This envelope shows none of the indicia of service by certified mail, return receipt requested. In addition, the postage of $0.48 is simply insufficient to send an envelope certified mail, return receipt requested. Accordingly, the initial notice of intention served by regular mail is a nullity and cannot serve to extend claimant's time to file and serve a claim (Zoeckler v State of New York,109 AD3d 1133 [4th Dept 2013]).
Defendant further argues that the second notice of intention personally served upon the Attorney General's Office on August 22, 2014 was untimely and, thus, was jurisdictionally defective. This defense was raised with particularity in defendant's answer. Claimant's second notice of intention alleged that claimant sustained an infection to his left hip on May 28, 2014, due to medical negligence and medical malpractice while claimant was incarcerated at Collins.
Claimant argues that the second or August 22, 2014 notice of intention was timely served within ninety (90) days of May 28, 2014, the accrual date stated in the notice of intention, and, thus, there is no jurisdictional defect. The problem with this argument is that throughout his motion papers and in his claim, claimant argues that the claim accrued on May 20, 2014, and not on May 28, 2014 as alleged in the notice of intention. Assuming an accrual date of May 20, 2014, then claimant had until August 18, 2014 within which to serve a notice of intention, making the August 22, 2014 notice of intention jurisdictionally defective for being served beyond the ninety (90) day period of the statute (Ivy v State of New York, supra [4th Dept 2006]).
In addition, defendant argues that neither the April 23, 2014 notice of intention nor the August 22, 2014 notice of intention complies with the pleading requirements of section 11 (b) of the Court of Claims Act. The claim alleges an infection in claimant's right hip which allegedly occurred on May 20, 2014 due to medical negligence and medical malpractice. The April 23, 2014 notice of intention refers to medical negligence and improper care of a broken bone in claimant's left foot which allegedly accrued on March 26, 2014. Nothing in the April 23, 2014 notice of intention puts defendant on notice that it should investigate a claim accruing on May 20, 2014 involving claimant's right hip as alleged in the claim. In that the April 23, 2014 notice of intention was deficient for stating a different injury and a different accrual date, it did not extend claimant's time to serve and file a claim alleging an injury to claimant's right hip which accrued on May 20, 2016 (Langner v State of New York, 65 AD3d 780 [3d Dept 2009]).
Defendant further argues that the second or August 22, 2014 notice of intention is also deficient. The August 22, 2014 notice of intention advised an infection to claimant's left hip which occurred on May 28, 2014 due to medical negligence and medical malpractice at Collins. Nothing in the August 22, 2014 notice of intention appraised defendant of the need to investigate claimant's right hip or to investigate any acts or occurrences which occurred prior to May 28, 2014. Thus, the August 22, 2014 notice of intention is also jurisdictionally deficient and may not be used to extend claimant's time to serve and file the claim (Czynski v State of New York, 53 AD3d 881 [3d Dept 2008], lv denied 11 NY3d 715 [2009]). Insofar as the April 23, 2014 and the August 22, 2014 notices of intention were deficient and no valid notice of intention was served within the ninety (90) day statutory period, the claim served and filed approximately two (2) years after accrual is untimely and must be dismissed (Langner v State of New York, supra at 782). Accordingly, defendant's cross-motion no. CM-92138 to dismiss claim no. 127939 must be granted.
Claimant moves by his motion no. M-91994 to amend the claim to correct the location of claimant's injury and to correct the dates of the alleged negligence and malpractice (see paragraph 2 of the affidavit of claimant's counsel, Eric M. Shelton, Esq. sworn to on March 12, 2018). In support, claimant's counsel refers in his affidavit to Legall v State of New York, 10 Misc 3d 800 [Ct Cl 2005] and to Gonzalez v State of New York, 25 Misc 3d 1216 (A) [2006]). Neither decision supports claimant's argument. The Court of Claims decision in Gonzalez is distinguishable as the notice of intention therein, unlike the notices of intention discussed herein, was found to be in compliance with the pleading requirements of section 11 (b) of the Court of Claims Act. More importantly, both the decisions in Gonzalez and Legall were decided prior to the Court of Appeals' decision in Kolnacki v State of New York, supra.
In fact, the Court of Claims decision in Legall was effectively overturned by the Court of Appeals in Kolnacki. In Legall, the Court of Claims held that a notice of intention which did not specify an amount claimed, as required by section 11 (b) at that time, was not jurisdictionally deficient and could be corrected by an amendment to the claim. Approximately one and a half years later, the Court of Appeals rendered its decision in Kolnacki, which held that the failure to include the total amount claimed as required by section 11 (b) was a jurisdictional defect requiring dismissal of the claim. In so holding, the Court of Appeals in Kolnacki stated that "nothing less than strict compliance with the jurisdictional requirements of the Court of Claims Act is necessary" and that "[a]lthough the result may be harsh, it is for the Legislature, not this Court, to set the terms of the State's waiver of immunity" (Kolnacki v State of New York, supra at 281).
Claimant also argues that defendant could have reviewed what he calls the "voluminous records regarding [c]laimant's medical condition" and "could easily have spoken to the nurses, medical doctor and other medical staff whose signatures appear in the subject records" (see paragraphs 30 and 31 of Attorney Shelton's March 12, 2018 affidavit), all to discover the correct injury and the correct accrual date, information which Court of Claims Act § 11 (b) obligates the claimant to provide. "[T]his is not the State's burden. The Court of Claims Act does not require the State to ferret out or assemble information that section 11 (b) obligates the claimant to allege" (Lepkowski v State of New York, supra at 208).
Finally, claimant is attempting by his motion no. M-91994 to correct the jurisdictional defects in his claim by amendment. This he may not do as leave to amend a claim to cure a jurisdictional defect is not permitted (Hogan v State of New York, 59 AD3d 754 [3d Dept 2009]).
Based on the foregoing, claimant's motion no. M-91994 to dismiss certain affirmative defenses in the defendant's answer and to amend the claim to correct jurisdictional defects is denied and defendant's cross-motion no. CM-92138 to dismiss the claim is granted and claim no. 127939 is hereby dismissed.
August 24, 2018
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims The following were read and considered by the Court: 1. Notice of claimant's Motion No. M-91994 and supporting affidavit of Eric M. Shelton, Esq. sworn to March 12, 2018, with annexed Exhibits A-H and memorandum of law dated March 12, 2018; 2. Notice of defendant's Cross-Motion No. CM-92138 dated April 17, 2018; 3. Affidavit in opposition to claimant's motion and in support of defendant's cross-motion of Assistant Attorney General Timothy J. Flynn sworn to April 17, 2018, with annexed Exhibit A; 4. Reply affidavit and affidavit in opposition to defendant's cross-motion of Eric M. Shelton, Esq. sworn to May 21, 2018; and 5. Reply affidavit of Assistant Attorney General Timothy J. Flynn, sworn to June 7, 2018.