Opinion
# 2014-039-395 Claim No. 118017
01-22-2014
RICARDO TORRES v. STATE OF NEW YORK
Claimant's attorney: Ricardo Torres, pro se Defendant's attorney: Hon. Eric T. Schneiderman Attorney General of the State of New York By: Thomas Trace Senior Attorney
Synopsis
Following a trial, the Court dismisses the claim on the ground that it untimely, in that claimant failed to file a claim, or serve the Attorney General's Office with a notice of intention to file a claim, within 90 days of the accrual of the claim.
Case information
UID: 2014-039-395 Claimant(s): RICARDO TORRES Claimant short name: TORRES Footnote (claimant name) : Defendant(s): STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 118017 Motion number(s): Cross-motion number(s): Judge: James H. Ferreira Claimant's attorney: Ricardo Torres, pro se Hon. Eric T. Schneiderman Attorney General of the State of New York Defendant's attorney: By: Thomas Trace Senior Attorney Third-party defendant's attorney: Signature date: January 22, 2014 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant, an inmate proceeding pro se, filed this claim with the Chief Clerk of the Court of Claims on February 10, 2010. Claimant seeks damages for injuries that he allegedly received on November 7, 2009 when he slipped and fell in the shower at the Mohawk Correctional Facility, Walsh Regional Medical Unit (hereinafter Walsh RMU), in Rome, New York. Claimant, who wears a prosthetic leg, alleges that employees of New York State Department of Corrections and Community Supervision wrongfully failed to provide him with a wheelchair so that he could safely access the shower and toilet facilities at the institution. The claim sets forth numerous causes of action, including negligence, gross negligence, violations of various laws, including the Americans with Disabilities Act, and violations of assorted state laws and regulations regarding inmate safety.
Defendant filed an answer to the claim on March 5, 2010. Defendant raised one affirmative defense, namely, that the Court lacks jurisdiction over the claim because it is untimely, in that neither the claim nor a notice of intention to file a claim was served within 90 days of the accrual of the claim (seeDefendant's exhibit D).
Defendant also served claimant with a demand for a Bill of Particulars. In a Decision and Order dated April 29, 2011, the Court (McCarthy, J.) granted claimant's motion for an extension of time to serve and file his response to the demand (see Torres v State of New York, UID No. 2011-040-024 [Ct Cl, McCarthy, J., Apr. 29, 2011]).
A trial on this claim was conducted on December 3, 2013 via video conference technology. Claimant testified on his own behalf, and defendant called one witness, a Walsh RMU nurse, to testify. Both parties offered documentary evidence, which was received into evidence without objection.
Preliminarily, the Court notes that, following claimant's trial presentation and again after the defense had rested, defendant moved to dismiss the claim on several grounds, including that the claim is untimely pursuant to Court of Claims Act § 10 (3). The Court reserved its decision on the motion. The Court will first address defendant's trial motion with respect to timeliness, as it raises a question of the Court's jurisdiction over this matter.
The Court of Claims Act requires, in relevant part, that a claim sounding in unintentional tort "be filed and served upon the attorney general within [90] days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor" (Court of Claims Act § 10 [3]). It is well settled that "[f]ailure to comply with the statutory filing and service requirements deprives the Court of Claims of subject matter jurisdiction and compels dismissal of the claim" (Maude V. v New York State Off. of Children & Family Servs., 82 AD3d 1468, 1469 [3d Dept 2011]; see Langner v State of New York, 65 AD3d 780, 781 [3d Dept 2009]).
The Court concludes that this claim is untimely. Claimant alleges in the claim that he was injured on November 7, 2009. Utilizing this date as the accrual date of this claim, claimant had until February 5, 2010 to either file and serve a claim or serve the Attorney General with a notice of intention to file a claim. As noted above, this claim was filed with the Court on February 10, 2010, five days too late (see Court of Claims Act § 10 [3]; Vargas v State of New York, 62 AD3d 1170, 1171 [3d Dept 2009]). The Court received no documentary evidence establishing when the Attorney General's Office was served with the claim. However, defendant's counsel indicated during the trial - and claimant acknowledged during his testimony - that the Attorney General's Office was served with the claim on February 9, 2010. Thus, it appears that the claim was also served beyond the 90-day time period. Claimant has not submitted any evidence - and has not argued - that he served the Attorney General's Office with a notice of intention to file a claim. The Court is satisfied that he did not do so, as claimant stated in the claim that a "[n]otice of intention was not filed, as cl[aimant] is [f]iling actual claim, herein, within 90 days of the incident" (Claim ¶ 26). Claimant's failure to comply with the statutory filing and service requirements of the Court of Claims Act renders the Court without jurisdiction and requires dismissal of the claim.
Evidence submitted by defendant at trial confirms that claimant's accident occurred on November 7, 2009 (see Defendant's exhibit B).
As a final matter, the Court notes that, after receipt of defendant's answer, claimant filed a motion for permission to file a late claim (M-78043). In a Decision and Order filed August 12, 2010, the Court (Siegel, J.) granted the motion and directed claimant "to serve and file a claim in accordance with the Court of Claims Act Sections 11 and 11-a within sixty (60) days of the filing date of this decision and order" (Torres v State of New York, UID No. 2010-042-518 [Ct Cl, Siegel, J., Aug. 5, 2010]). The Court's records indicate that claimant did not file a claim as directed by the Court within the specified time period, although he did serve a claim upon the Attorney General on September 3, 2010. In any event, the Court's August 2010 ruling with respect to claimant's motion for permission to file a late claim has no effect on the timeliness of the instant claim.
The Court noted in its decision that claimant had "acknowledge[d] that [Claim No. 118017] was not timely served" (Torres v State of New York, UID No. 2010-042-518 [Ct Cl, Siegel, J., Aug. 5, 2010]).
Claimant testified at trial that he did file a claim with the Court of Claims following Judge Siegel's decision, but submitted no documentary proof establishing that he did so. The Court's records indicate that the Court of Claims did receive a claim from claimant on September 2, 2010, but it was returned to claimant because it was not accompanied by a filing fee or an application for a reduced filing fee (see CPLR 1101[f]). Claimant did not thereafter resubmit the claim to be filed at the Court of Claims.
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Based upon the foregoing, it is ordered that Claim No. 118017 is dismissed in its entirety. Any motions upon which the Court had previously reserved or which remain undecided are hereby denied. The Clerk of the Court is directed to enter judgment accordingly.
January 22, 2014
Albany, New York
James H. Ferreira
Judge of the Court of Claims