Opinion
# 2016-040-108 Claim No. 124987 Motion No. M-88772 Cross-Motion No. CM-89094
12-21-2016
ANTHONY JULES v. THE STATE OF NEW YORK
LAW OFFICES OF GERALD P. GROSS, P.C. By: Elliot B. Pasik, Esq. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Michael T. Krenrich, Esq., AAG
Synopsis
State's Motion to Dismiss Claim as Notice of Intention was not timely served and Claim was not timely served and filed granted. Claimant's Cross-Motion to deem Notice of Intention and Claim timely served and to strike affirmative defenses denied.
Case information
| UID: | 2016-040-108 |
| Claimant(s): | ANTHONY JULES |
| Claimant short name: | JULES |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | Caption amended to reflect the State of New York as the proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124987 |
| Motion number(s): | M-88772 |
| Cross-motion number(s): | CM-89094 |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | LAW OFFICES OF GERALD P. GROSS, P.C. By: Elliot B. Pasik, Esq. |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Michael T. Krenrich, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | December 21, 2016 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, Defendant's Motion to dismiss the Claim pursuant to CPLR 3211(a)(2) and (8), on the basis that the Court lacks subject matter jurisdiction over the Claim and personal jurisdiction over the Defendant as a result of Claimant's failure to timely serve the Notice of Intention to File a Claim and to serve and file the Claim as required by Court of Claims Act §§ 10 and 11(a)(i), is granted. Claimant's Cross-Motion to deem the Notice of Intention and Claim timely filed, striking Defendant's affirmative defenses, ordering examinations before trial, and sanctioning Defendant, is denied.
The Claim, which was filed in the office of the Clerk of the Court on September 17, 2014, alleges that, on the morning of June 20, 2013, Claimant was incarcerated at Wallkill Correctional Facility (hereinafter, "Wallkill"), and that, as he was exiting the shower area of the C-2 housing unit, a piece of debris fell from the ceiling and fell into Claimant's right eye (Claim, ¶ 13). It is asserted that Claimant was injured as a result of the State's negligence (id., ¶ 19). The Claim also asserts that Claimant (pro se) served a Notice of Intention to File a Claim upon the Attorney General on September 18, 2013 (id., ¶ 20).
Pursuant to the Court of Claims Act provisions applicable to personal injury actions, Claimant was required to file and serve his Claim within 90 days from the date of accrual unless a written Notice of Intention to File a Claim was served upon the Attorney General within such time period. In that case, the Claim itself was required to be filed and served upon the Attorney General within two years after the accrual of the negligence cause of action (Court of Claims Act § 10[3]). In either case, Claimant was required to initiate action within 90 days of the Claim's accrual.
Court of Claims Act § 11(a)(i) provides that the Claim shall be filed with the Clerk of the Court and that a copy shall be served upon the Attorney General within the time period provided in Section 10 of the Court of Claims Act, either personally or by certified mail, return receipt requested. The statute further provides that service by certified mail, return receipt requested, is not complete until the Claim or Notice of Intention to File a Claim is received by the Attorney General. It is well established that failure to timely serve the Attorney General in strict compliance with Court of Claims Act § 11 gives rise to a jurisdictional defect (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 723 [1989]; Matter of Dreger v New York State Thruway Auth., 177 AD2d 762, 763 [3d Dept 1991], affd 81 NY2d 721 [1992]; Suarez v State of New York, 193 AD2d 1037, 1038 [3d Dept 1993]).
Pursuant to Court of Claims Act § 11(c), however, any such defect is waived unless it is raised with particularity as an affirmative defense either by motion to dismiss prior to service of the responsive pleading, or in the responsive pleading itself (see Knight v State of New York, 177 Misc 2d 181, 183 [Ct Cl 1998]).
A Notice of Intention to File a Claim was received by the Attorney General by certified mail, return receipt requested, on September 23, 2013, and the Claim was received by the Attorney General on October 2, 2014 (Affirmation of Michael T. Krenrich, Esq. [hereinafter, "Krenrich Affirmation"], ¶¶ 3,4 and Exs. A & B attached).
In its Answer, filed in the office of the Clerk of the Court on November 10, 2014, Defendant asserted as its Eighth Defense that "this Court lacks subject matter jurisdiction over the claim and personal jurisdiction over the defendant, The State of New York, as the claim is untimely in that neither the claim nor a notice of intention was served within ninety [(90)] days of the accrual of the claim as required by Court of Claims Act Sections 10(3) and 11." Defendant asserts that the Claim accrued on June 20, 2013, the date Claimant asserts he was injured (Krenrich Affirmation, ¶ 6). Thus, it is asserted, neither the Notice of Intention served on September 23, 2013, nor the Claim served on October 2, 2014, were served within 90 days of accrual, which expired on September 18, 2013 (id).
In opposition to the State's Motion, Claimant asserts that the Notice of Intention was served by Claimant acting pro se (Reply Affirmation of Elliot B. Pasik, Esq. [hereinafter, "Pasik Reply Affirmation"], ¶ 8). Claimant posits that the defense asserted in the State's Answer regarding the untimeliness of service of the Notice of Intention does not meet the particularity requirements of CPLR § 3013 (Affirmation of Elliot B. Pasik, Esq., in Support of Cross-Motion [hereinafter, "Pasik Affirmation"], ¶ 4 and Pasik Reply Affirmation, ¶ 8). The Uniform Rules for the Court of Claims (22 NYCRR § 206.1[c]) provides that matters not covered by the Court Rules or the Court of Claims Act shall be governed by the CPLR. As there is a specific provision of the Court of Claims Act (§ 11 [c]) that relates to the particularity of defenses, as stated above, the Court finds that the Court of Claims Act, as well as the CPLR, informs whether the defense has been stated with the requisite particularity in the case at issue here.
The quoted language of the State's eighth defense, raised in the appropriate pleading, states the nature of the defense, the statute(s) relied upon, and sets forth the required time period and claimed defect. The Court finds that Defendant has raised the defenses with the requisite particularity to satisfy Court of Claims Act § 11(c) (Czynski v State of New York, 16 Misc 3d 465, 469 [Ct Cl 2007], affd 53 AD3d 881, 882 [3d 2008], lv denied 11 NY3d 715 [2009]; Villa v State of New York, 228 AD2d 930, 931[3d Dept 1996], lv denied 88 NY2d 815 [1996]; cf. Gelormini v State of New York, UID No. 2011-040-011 [Ct Cl, McCarthy, J., Feb. 18, 2011] [affirmative defenses not raised with sufficient particularity to preserve defense of lack of jurisdiction based upon the alleged untimeliness of service]; National Grange v State of New York, UID No. 2009-040-006 [Ct Cl, McCarthy, Jr., Jan. 16, 2009] [affirmative defenses did not preserve defense of lack of jurisdiction where they did not set forth whether Notice of Intention was untimely or improperly served, or the required time period]).
As stated above, Court of Claims Act § 11(a)(i) provides that service by certified mail, return receipt requested, is not complete until the Claim or Notice of Intention to File a Claim is received by the Attorney General. The only copy of the Notice of Intention provided to the Court is attached to Defendant's motion papers as Exhibit A. The document signed by Mr. Jules is dated September 18, 2013 and the Affidavit of Service, which does not contain a date that the document was mailed, was notarized on September 18, 2013 in St. Lawrence County. The envelope in which the Notice of Intention was received is postmarked September 19, 2013, and stamped "Received" by the New York State Attorney General's Claims Bureau on September 23, 2013.
Another argument raised by Claimant is that the Court issued a letter, dated November 20, 2014, which transmitted a blank Preliminary Conference Order (hereinafter, "PCO") form, with the direction that it " 'be prepared by Claimant's counsel after a conference (telephonic or otherwise) with Defendant's counsel' " (Pasik Affirmation, ¶ 5). Counsel conferred and the Assistant Attorney General e-filed the completed proposed PCO on December 18, 2014 (id., ¶ 6), which the Court so-ordered the same day. Page 1 of the PCO states that the date of the occurrence was June 20, 2013 and that the date the Notice of Intention was received by the Attorney General was September 18, 2013, the date the Claim was received by the Court was September 17, 2014, and the date the Claim was received by the Attorney General was October 2, 2014 (id., ¶ 7).
Thus, Claimant asserts:
10. In this case, both parties agreed, and this court ordered, that this action was timely. The Notice of Intention was received exactly 90 days after the occurrence. Since the Notice of Intention was timely, the Claim filed and received by the Attorney General well within two years, was also timely.
(id.)
As stated by Defense counsel in his Reply Affirmation, the PCO incorrectly states the date that the Notice of Intention was received. Such misstatement of fact does not serve to correct a jurisdictional defect that was timely raised with particularity in Defendant's Answer. Nor does the PCO constitute an admission that the Notice of Intention was received on September 18, 2013, particularly when the U.S. postmark on the envelope in which the Notice of Intention was received establishes that it was mailed on September 19, 2013 (Krenrich Reply Affirmation, ¶ 10; see Goudie v State of New York, UID No. 2001-029-073 [Ct Cl, Mignano, J., May 10, 2001], affd 291 AD2d 432 [2d Dept 2002], lv denied 98 NY2d 602 [2002]).
In addition, by signing the PCO, the Court did not make a finding as to factual statements contained therein, or "Order" that the Notice of Intention was served on September 18, 2013, as asserted by Claimant. What the Court "SO ORDERED" was that Discovery would take place as set forth by the parties, that the Note of Issue and Certificate of Readiness would be served and filed on or before the date agreed, that the trial would be bifurcated, and that all motions for summary judgment would be made no later than 45 days after the filing of the Note of Issue and Certificate of Readiness.
Court of Claims Act § 10 is more than a statute of limitations; it is a jurisdictional prerequisite to bringing and maintaining an action in this Court (Mallory v State of New York, 196 AD2d 925, 926 [3d Dept 1993]; DeMarco v State of New York, 43 AD2d 786 [4th Dept 1973], affd 37 NY2d 735 [1975]; Antoine v State of New York, 103 Misc 2d 664 [Ct Cl 1980]). Failure to timely comply with the statutory service and filing requirements of the Court of Claims Act constitutes a fatal jurisdictional defect requiring dismissal (Lyles v State of New York, 3 NY3d 396, 400-401 [2004]; Buckles v State of New York, 221 NY 418 [1917]; Langner v State of New York, 65 AD3d 780, 781 [3d Dept 2009]; Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]). The Court cannot waive a defect in jurisdiction that has been timely raised (see Thomas v State of New York, 144 AD2d 882 [3d Dept 1988]). The defect asserted was timely and properly raised with particularity, in Defendant's verified Answer as set forth above, in accordance with Court of Claims Act § 11(c) (Czynski v State of New York, supra at 882; Villa v State of New York, supra at 931).
Based upon the foregoing, Defendant's Motion is granted and the Claim is dismissed for failure to timely serve the Notice of Intention and Claim upon Defendant as required by CCA §§ 10(3) and 11(a)(i). As the Notice of Intention was not timely served upon Defendant, it did not extend Claimant's time to serve and file the Claim and, thus, the Claim is untimely.
The Court turns to Claimant's Cross-Motion. As the Notice of Intention was not timely served upon Defendant in accordance with Court of Claims Act §§ 10(3) and 11(a)(i) and the defense of untimeliness was properly raised by Defendant in its Answer in accordance with Court of Claims Act § 11(c), as set forth above, the Court cannot deem the Notice of Intention and Claim to be timely filed. The remainder of the Cross-Motion is denied as moot.
December 21, 2016
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims The following papers were read and considered by the Court on Defendant's Motion to Dismiss and Claimant's Cross-Motion to deem the Notice of Intention and Claim timely filed, striking Defendant's affirmative defenses, ordering examinations before trial, and sanctioning Defendant : Papers Numbered Notice of Motion, Affirmation in Support & Exhibits attached 1 Notice of Cross-Motion, Affirmation in Support of Cross-Motion and in Opposition to Motion 2 Defendant's Reply Affirmation 3 Claimant's Reply Affirmation 4 Filed Papers: Claim, Answer