Opinion
# 2019-058-038 Claim No. 133078 Motion No. M-94717 Cross-Motion No. CM-94868
12-09-2019
AMES C. KING v. STATE OF NEW YORK
James C. King, Pro Se Hon. Letitia James, New York State Attorney General By: Christopher J. Kalil, Esq. Assistant Attorney General
Synopsis
Claimant's motion for summary judgment in lieu of complaint is denied; Defendant's cross motion to dismiss so much of the Claim alleging intentional torts granted as Claim was not timely served upon Attorney General in accordance with Court of Claims Act §§ 10 (3-b) and 11 (a) (i); Defendant's cross motion to dismiss cause of action sounding in negligence denied without prejudice as Claimant's time to serve such a Claim had not expired.
Case information
| UID: | 2019-058-038 |
| Claimant(s): | JAMES C. KING |
| Claimant short name: | KING |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 133078 |
| Motion number(s): | M-94717 |
| Cross-motion number(s): | CM-94868 |
| Judge: | CATHERINE E. LEAHY-SCOTT |
| Claimant's attorney: | James C. King, Pro Se |
| Defendant's attorney: | Hon. Letitia James, New York State Attorney General By: Christopher J. Kalil, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | December 9, 2019 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Pro se Claimant James C. King filed this Claim on May 13, 2019 alleging that, on November 28, 2018, while incarcerated at Mid-State Correctional Facility, he was (1) assaulted by other inmates, (2) assaulted and subjected to excessive force by correction officers, and (3) denied medical treatment for his injuries following the incidents. The Claim also alleges that Claimant was wrongfully confined in the Special Housing Unit (SHU) as a result of the incidents. In particular, Claimant contends that he was wrongfully confined in the SHU for an additional five days beyond his February 17, 2019 release date. No answer to the Claim was filed at the time Claimant's motion was returnable.
Although the Claim states that the incidents occurred on November 28, 2019, this appears to be a typographical error. It appears that the incidents occurred on November 28, 2018.
Claimant now moves pursuant to CPLR 3213 for summary judgment in lieu of complaint (M-94717). In response, Defendant cross-moves to dismiss the Claim (CM-94868) on the ground that the Court lacks subject matter jurisdiction over the Claim because it was never served upon the Attorney General (see Affirmation of Christopher J. Kalil, Esq., Assistant Attorney General ¶¶ 3-4). Because Defendant's motion implicates this Court's jurisdiction, it will be addressed first.
Court of Claims Act § 11 (a) (i) mandates that a copy of the Claim be served personally or by certified mail, return receipt requested, upon the Attorney General within the applicable time period provided in Section 10 of the Court of Claims Act. "A claimant seeking to recover damages for personal injuries caused by the negligence, intentional tort or unintentional tort of an officer or employee of the State must file and serve a claim or, alternatively, a notice of intention to file such a claim, upon the Attorney General within 90 days after the accrual thereof" (Maude V. v New York State Off. of Children & Family Servs., 82 AD3d 1468, 1469 [3d Dept 2011]; see Court of Claims Act § 10 [3], [3-b]). When a notice of intention is timely served, the time to file and serve a claim alleging an unintentional tort is extended two years after accrual (see Court of Claims Act § 10 [3], [3-a]), whereas the time to serve and file a claim alleging an intentional tort is extended one year following accrual (see id. § 10 [3-b]). Failure to serve the Attorney General with the Claim divests the Court of subject matter jurisdiction (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 723 [1989]; Maude V., 82 AD3d at 1469). Claimant bears the ultimate burden of establishing proper service by a preponderance of the credible evidence (see Caci v State of New York, 107 AD3d 1121, 1124 [3d Dept 2013]; Hallston Manor Farm, LLC v Andrew, 60 AD3d 1330, 1330 [4th Dept 2009]; Boudreau v Ivanov, 154 AD2d 638, 639 [2d Dept 1989]).
In support of its motion, Defendant includes an affidavit from Debra L. Mantell, "a Legal Assistant II in the Albany Office of the Attorney General of the State of New York," who attested that she is familiar with the record-keeping system of the Attorney General's Office regarding notices of intention, motions, and claims that are served upon the Attorney General's Office (Affidavit of Debra L. Mantell, sworn to on November 4, 2019 ¶¶ 1-2, Affirmation of Christopher J. Kalil, Esq., Assistant Attorney General, attached). Ms. Mantell affirmed that, upon her thorough search of the records of the New York State Attorney General's Office, she discovered that Claimant served a Notice of Intention to File a Claim upon the Attorney General on January 28, 2019 related to "an incident that occurred at Mid-State Correctional Facility on or about November 28, 2019 [sic]" (id. ¶ 8). Because Defendant concedes that it was timely and properly served with a Notice of Intention to File a Claim, the Court concludes that Claimant's time to file and serve a Claim related to the incidents that occurred on November 28, 2018 was extended (see Court of Claims Act § 10 [3], [3-a], [3-b]).
Specifically, Claimant's time to serve and file a Claim for negligence relating to Defendant's failure to protect him from an inmate-on-inmate assault and for medical negligence was extended to November 28, 2020--two years from the date of accrual (see Court of Claims Act § 10 [3]; Douglas v State of New York, UID No. 2018-044-527 [Ct Cl, Schaewe, J., Apr. 26, 2018]; Cendales v State of New York, UID No. 2002-019-585 [Ct Cl, Lebous, J., Nov. 12, 2002]). To the extent the Claim alleges causes of action for negligence for Defendant's failure to protect him from an assault by other inmates and for medical negligence, Claimant timely filed the Claim on May 13, 2019 and his time to serve the Claim alleging such causes of action has yet to expire. Accordingly, to the extent Defendant's motion seeks dismissal of these causes of action, it must be denied as premature (see Owusu v State of New York, UID No. 2007-038-563 [Ct Cl, DeBow, J., Oct. 1, 2007]; Watkins v State of New York, UID No. 2000-001-007 [Ct Cl, Read, P.J., Apr. 26, 2000]).
However, to the extent Claimant alleges that he was assaulted by correction officers and subjected to excessive force, the Claim must be dismissed. Claimant's time to serve and file a Claim alleging this intentional tort was extended to November 28, 2019--one year from the date of accrual (see Court of Claims Act § 10 [3-b]). Ms. Mantell affirmed that her thorough search of the records of the Attorney General's Office revealed no record of a Claim being served in relation to the incident (see Affidavit of Debra L. Mantell, sworn to on November 4, 2019, ¶ 9). Despite Claimant's timely filing of the Claim, he has failed to establish that the Claim was served on the Attorney General by certified mail, return receipt requested. Although Claimant asserts in correspondence that he mailed his Claim to the Attorney General's Office (see Claimant's Letter dated November 19, 2019), his contention is lacking weight as it is not sworn, and he has not submitted any documents such as a certified mail receipt or inmate account encumbrance that would raise an issue as to whether the Claim was, in fact, served upon the Attorney General (see Lewis v Department of Correction, UID No. 2018-038-541 [Ct Cl, DeBow, J., Apr. 24, 2018]). Claimant's submission of the return receipt of the filing of the Claim with the Court is insufficient to establish that he served the Claim upon the Attorney General by certified mail, return receipt (see Return Receipt & Payment Receipt, Claimant's Letter dated November 19, 2019, attached). Consequently, to the extent the Claim alleges a cause of action for an intentional tort of excessive force and assault by correction officers, the Claim must be dismissed.
Similarly, to the extent the Claim alleges a cause of action for wrongful confinement, it must be dismissed. Claimant's wrongful confinement claim accrued on February 22, 2019, almost one month after he served a Notice of Intention to File a Claim (see Santiago v City of Rochester, 19 AD3d 1061, 1062 [4th Dept 2005] [wrongful confinement claim accrues on the date confinement was terminated], lv denied 5 NY3d 710 [2005]; Davis v State of New York, 89 AD3d 1287, 1287 [3d Dept 2011] [same]). Consequently, Claimant was required to file and serve the Claim or serve a Notice of Intention to File a Claim on or before May 23, 2019 (see Court of Claims Act §§ 10 [3], [3-b]; 11 [a] [i]). Although Claimant timely filed his Claim on May 13, 2019, he failed to establish that he served his Claim in accordance with Court of Claims Act § 11 (a) (i) as set forth above. Accordingly, to the extent the Claim asserts a cause of action for wrongful confinement, it must be dismissed.
Turning to Claimant's application, Claimant's motion for summary judgment in lieu of complaint is improper as this Claim is not "based upon an instrument for the payment of money only or upon any judgment" (CPLR 3213). However, it appears that Claimant is actually seeking a default judgment pursuant to CPLR 3215 based upon Defendant's failure to timely respond to the Claim (see Notice of Mot for Summary Judgment in Lieu of Complaint, at 1). CPLR 3215 (f) specifically requires an applicant for a default judgment to establish proof of service of the Claim. As stated above, Claimant has failed to establish that he served his Claim upon the Attorney General by certified mail, return receipt requested. Accordingly, to the extent Claimant's motion can be construed as seeking a default judgment, it must be denied.
Accordingly, it is hereby
ORDERED that Claimant's Motion No. M-94717 is denied in its entirety; and it is further
ORDERED that Defendant's Cross Motion No. CM-94868 is granted insofar as it seeks dismissal of Claimant's causes of action for excessive force and assault by correction officers and wrongful confinement; and it is further
ORDERED that Defendant's Cross Motion No. CM-94868 is otherwise denied, without prejudice.
December 9, 2019
Albany, New York
CATHERINE E. LEAHY-SCOTT
Judge of the Court of Claims The Court has considered the following in deciding this motion: (1) Claim No. 133078, filed on May 13, 2019. (2) Notice of Motion for Summary Judgment in Lieu of Complaint, dated October 8, 2019. (3) Affidavit in Support of Motion for Summary Judgment in Lieu of Complaint, sworn to on October 8, 2019. (4) Notice of Cross Motion to Dismiss, dated November 8, 2019. (5) Affirmation of Christopher J. Kalil, Esq., in Opposition to Motion and in Support of Cross Motion, dated November 8, 2019, with attachments. (6) Claimant's Letter dated November 19, 2019, with attachment.