Opinion
# 2017-040-026 Claim No. 122324 Motion No. M-89700
03-01-2017
LA TONYA CARTER WILLIAMS v. THE STATE OF NEW YORK
Raymond Shanley, Esq. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas Trace, Senior Attorney
Synopsis
Claim dismissed as Claim was not timely served upon Defendant in accord with CCA §§ 10 & 11(a)(i).
Case information
| UID: | 2017-040-026 |
| Claimant(s): | LA TONYA CARTER WILLIAMS |
| Claimant short name: | CARTER WILLIAMS |
| 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): | 122324 |
| Motion number(s): | M-89700 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Raymond Shanley, Esq. |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas Trace, Senior Attorney |
| Third-party defendant's attorney: | |
| Signature date: | March 1, 2017 |
| 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 Claim as required by Court of Claims Act §§ 10 and 11(a)(i), is granted.
This Claim, which was filed with the office of the Clerk of the Court, when Claimant was appearing pro se, on January 30, 2013, asserts that Claimant was employed at Central New York Psychiatric Center and was the victim of employment discrimination, retaliation, and wrongful discharge from her employment (Claim, ¶ 2). Claimant asserts that she was wrongfully discharged on November 1, 2012 and asserts that is the date her Claim accrued (id., ¶ 3).
Pursuant to the Court of Claims Act provisions applicable to personal injury actions, Claimant was required to file and serve her 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]).
In its Answer, filed with the Clerk of the Court on March 7, 2013, Defendant asserted as its Fourth Affirmative Defense that "[t]his Court lacks subject matter jurisdiction of 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 §§ 10 (3), 10 (3-b) and 11."
Defendant asserts that the Claim was not served upon the Attorney General by certified mail, return receipt requested, until January 31, 2013, which is beyond the statutory time period established by Court of Claims Act § 10 (Affirmation of Thomas Trace, Esq., Senior Attorney, ¶¶ 2, 3, 4, and Exs. A, B attached). The Court takes judicial notice of the fact that January 31, 2013 was a Thursday and was 91 days after the Claim accrued on November 1, 2013. Claimant did not submit any opposition to Defendant's Motion.
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, 53 AD3d 881, 882 [3d Dept 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]).
Based upon the foregoing, Defendant's Motion is granted and the Claim is dismissed for failure to timely serve it in accordance with Court of Claims Act §§ 10(3) and 11(a)(i).
The Court notes that, by letter dated November 2, 2016, the parties were notified that the trial of this Claim was scheduled for August 1, 2017 at the Court of Claims in Utica, New York. That trial is now unnecessary.
March 1, 2017
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: Papers Numbered Notice of Motion, Affirmation in Support, & Exhibits Attached 1 Filed Papers: Claim, Answer