Opinion
# 2014-039-434 Claim No. 119417 Motion No. M-85573
11-21-2014
ANDRE WILLIAMS v. STATE OF NEW YORK
Claimant's attorney: Andre Williams, pro se Defendant's attorney: Hon. Eric T. Schneiderman Attorney General of the State of New York By: Thomas Trace Senior Attorney
Synopsis
Defendant's motion to dismiss the claim is granted. Claimant failed to serve a copy of the claim upon the Attorney General's Office by an authorized method. In addition, the claim is untimely, as the claim was not filed and served within 90 days of accrual, and there is no proof that claimant served a notice of intention to file a claim within 90 days of accrual.
Case information
| UID: | 2014-039-434 |
| Claimant(s): | ANDRE WILLIAMS |
| Claimant short name: | WILLIAMS |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | The Court has, sua sponte, amended the caption to reflect the State of New York as the only proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 119417 |
| Motion number(s): | M-85573 |
| Cross-motion number(s): | |
| Judge: | James H. Ferreira |
| Claimant's attorney: | Andre Williams, pro se |
| Defendant's attorney: | Hon. Eric T. Schneiderman Attorney General of the State of New York By: Thomas Trace Senior Attorney |
| Third-party defendant's attorney: | |
| Signature date: | November 21, 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 January 27, 2011. Claimant seeks damages arising from injuries he allegedly sustained on July 10, 2010 when part of a bunk bed fell on him while he was an inmate at Mohawk Correctional Facility in Rome, New York.
Issue was joined and defendant now moves to dismiss the claim pursuant to CPLR 3211 (a) (2) and (8) on the ground that the Court lacks jurisdiction over the claim and defendant because the claim was served upon the Attorney General by regular mail and not certified mail, return receipt requested and the claim was untimely served. Claimant opposes the motion.
This matter was scheduled for a video trial on September 18, 2014. Defendant filed the instant motion on August 25, 2014 after being notified that the trial had been scheduled. The Court made the motion returnable on October 1, 2014 and adjourned the trial without date so that it could first address defendant's motion.
In opposition to the motion, claimant has submitted an unsworn letter signed by him, dated September 3, 2014. Claimant filed this letter with the Court but there is no indication that he served it upon defendant. The Court, nevertheless, has considered this submission, as no prejudice to defendant is apparent.
Court of Claims Act § 10 requires that a claim sounding in negligence or unintentional tort "be filed and served upon the attorney general within [90] days after the accrual of such claim, unless 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]). With respect to service, the Court of Claims Act provides that a copy of the claim "shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for filing with the clerk of the court" (Court of Claims Act § 11 [a] [i]). Likewise, "[a]ny notice of intention shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for service upon the attorney general" (id.).
"Because claims against defendant are allowed only by virtue of its waiver of sovereign immunity, the failure to strictly comply with the filing or service provisions of the Court of Claims Act divests the court of subject matter jurisdiction" (Langner v State of New York, 65 AD3d 780, 781 [3d Dept 2009]; see Caci v State of New York, 107 AD3d 1121, 1122 [3d Dept 2013]). It is well settled that "[a]lternative mailings which do not equate to certified mail, return receipt requested, are inadequate and do not comply with Court of Claims Act § 11 (a)" (Hodge v State of New York, 213 AD2d 766, 767 [3d Dept 1995]; accord Femminella v State of New York, 71 AD3d 1319, 1320 [3d Dept 2010]; see Miranda v State of New York, 113 AD3d 943, 943 [3d Dept 2014]). Accordingly, "service by an unauthorized method . . . compels dismissal . . . , as long as the defect is raised with particularity either by a pre-answer motion to dismiss, or in the answer itself" (Stokes v State of New York, UID No. 2012-049-063 [Ct Cl, Weinstein, J., Dec. 10, 2012]; see Court of Claims Act § 11 [c]).
Here, defendant preserved its objection to the manner of service of the claim by raising the defect in its answer (Affirmation in Support of Motion to Dismiss, Exhibit E ¶ 4).
The proof before the Court establishes that the claim was not served upon the Attorney General by an authorized method and must be dismissed for that reason. Defendant's counsel affirms that the Attorney General's Office was served with the claim on January 27, 2011 by regular mail, rather than certified mail, return receipt requested. Defendant's counsel has attached a copy of the claim and a copy of the envelope in which it was received, each of which has a date-stamp that indicates that it was received by the Attorney General's Office on January 27, 2011. Nothing on the envelope indicates that it was sent by certified mail, return receipt requested, and the postage is listed as $.61, which defendant's counsel affirms is "insufficient to cover the cost of certified mail, return receipt requested" (Affirmation in Support of Motion ¶ 3). Importantly, claimant does not dispute that he served the claim by regular mail and has offered no evidence - and has not argued- that he, in fact, served the claim by an authorized method. The affidavit of service of the claim appended to the claim is insufficient to establish that the claim was properly served because it does not identify the addressee of the mailing. As such, the Court concludes that claimant failed to serve the claim upon the Attorney General by a manner of service authorized by the Court of Claims Act. Claimant's failure to comply with the statutory service requirements renders the Court without jurisdiction and requires dismissal of the claim.
Even if the Court had found that claimant had served the claim by an authorized method, it would nonetheless dismiss the claim because it is untimely. The claim provides an accrual date of July 10, 2010, the date of claimant's accident. Thus, claimant had 90 days - until October 8, 2010 - to either file and serve a claim or serve the Attorney General with a notice of intention to file a claim. The papers before the Court establish that this claim was filed with the Court and served upon the Attorney General on January 27, 2011, well outside the 90-day time period.
The claim states that claimant served a notice of intention to file a claim on July 20, 2010. However, defendant's counsel affirms that no such notice of intention was received by the Attorney General's Office and has submitted a certified copy of the facility's Mailroom Certified Mail Log Book for the period between June 28, 2010 through July 28, 2010, which does not contain any notations pertaining to claimant during that period. Claimant has submitted no proof to the contrary. He states, in an unsworn letter, that he attempted to serve a notice of intention upon the Attorney General on July 20, 2010 by certified mail, return receipt requested but did not get a return receipt back and "do[es] not even know if the C.O. sent it out or not" (Claimant's letter, dated September 3, 2014). The Court finds these allegations insufficient to establish that claimant properly served the Attorney General with a notice of intention to file a claim within the 90-day time period. Although "New York courts have . . . adopted a narrow limitation on the dismissal of prisoner claims for failure to meet the legal requirements for timely filing and service, estopping the State from obtaining such dismissal where the prisoner's non-compliance was the result of 'misfeasance or malfeasance' on the part of correctional personnel or other state officials" (Encarnacion v State of New York, UID No. 2012-049-038 [Ct Cl, Weinstein, J., Aug. 8, 2012]; see Rivera v State of New York, 5 AD3d 881, 881 [3d Dept 2004]), here, claimant has failed to establish that his failure to timely serve the Attorney General with a notice of intention was the result of misfeasance or malfeasance by the State.
Inasmuch as claimant requests more time to obtain proof of service of a notice of intention or "to do [his] claim over" (Claimant's letter, dated September 3, 2014), the requests are denied.
Based upon the foregoing, defendant's motion (M-85573) is granted and Claim No. 119417 is dismissed in its entirety.
November 21, 2014
Albany, New York
James H. Ferreira
Judge of the Court of Claims
Papers Considered:
1. Notice of Motion to Dismiss, dated August 22, 2014;
2. Affirmation in Support of Motion to Dismiss by Thomas Trace, Senior Attorney, dated August 22, 2014, with supporting exhibits; and
3. Letter in Opposition to Motion to Dismiss by Andre Williams, dated September 3, 2014.