Opinion
# 2018-040-063 Claim No. 127200 Motion No. M-91666
07-18-2018
In the Matter of the Claim of REGINALD WILSON v. STATE OF NEW YORK
NOVO LAW FIRM, PC By: Ellie Silverman, Esq. BARBARA D. UNDERWOOD Attorney General of the State of New York By: Sean B. Virkler, Esq., AAG
Synopsis
State's Motion to Dismiss granted as Notice of Intention was not timely served upon Attorney General and did not extend time to serve and file a claim.
Case information
| UID: | 2018-040-063 |
| Claimant(s): | In the Matter of the Claim of REGINALD WILSON |
| Claimant short name: | WILSON |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 127200 |
| Motion number(s): | M-91666 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | NOVO LAW FIRM, PC By: Ellie Silverman, Esq. |
| Defendant's attorney: | BARBARA D. UNDERWOOD Attorney General of the State of New York By: Sean B. Virkler, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | July 18, 2018 |
| 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 both subject matter jurisdiction over the Claim and personal jurisdiction over the Defendant, is granted.
This Claim, which was filed in the office of the Clerk of the Court on December 14, 2015, alleges that, while incarcerated at Mohawk Correctional Facility (hereinafter, "Mohawk") on or about January 15, 2014, Claimant was negligently exposed to active tuberculosis (hereinafter, "TB") when he was moved to a cell with an inmate who had the disease (Claim, ¶ 3). Claimant asserts that a blood test and chest x-rays were taken, and, in or around April 2014, the tests confirmed that he was exposed to TB bacteria. The Claim further alleges that Claimant did not receive treatment until approximately May 2014 when he was prescribed Isoniazid, but had to stop the medication because it was damaging his liver (id.). Claimant filed a grievance with Mohawk over his exposure to TB on August 20, 2014 and the grievance was denied on October 9, 2014 (id.). The Claim asserts causes of action for civil rights violations, under both the Federal and State Constitutions, negligent hiring, training and supervision of employees, and negligence in exposing Claimant to TB.
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 Claim (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 January 27, 2016, Defendant asserted as its Seventh Affirmative Defense, that the Notice of Intention "is defective in that it was not served within ninety (90) days of accrual as required by Court of Claims Act Sections 10 (3) and 10 (3-b) and Section 11 (a) … and is untimely[,] and[,] therefore[,] did not extend the time to file a claim."
In his affirmation submitted in support of Defendant's Motion, Defense counsel asserts that, on October 16, 2014, Claimant served a Notice of Intention to File a Claim upon the Attorney General (Affirmation of Sean B. Virkler, Esq., Assistant Attorney General [hereinafter, "Virkler Affirmation"], ¶ 3, and Ex. A attached). On December 18, 2015, Claimant served the Attorney General with a Claim (id., and Ex. B attached). Defendant further asserts that the Department of Corrections and Community Supervision (hereinafter, "DOCCS") records note that the blood test and chest x-ray results are dated May 29, 2014 (id., ¶ 6, and Ex. E attached). Defense counsel states that the Claim accrued on the date Claimant discovered he had TB, i.e., the date of the positive tests (id.).
Here, the Notice of Intention was served on October 16, 2014, which is more than 90 days after the Claim accrued on May 29, 2014 (Mrabet v State of New York, UID No. 2016-018-705 [Ct Cl, Fitzpatrick, J., Mar. 3, 2016]; see CPLR 214-c [2]).
In opposition to Defendant's Motion, Claimant asserts that Defendant's Motion is premature, as discovery has not been completed, and Claimant needs time to obtain a physician's affirmation to further his claims of medical negligence, deliberate indifference to medical needs, and, potentially, medical malpractice (Affirmation of Ellie Silverman, Esq. [hereinafter, "Silverman Affirmation"], ¶ 7). Defendant's Motion relates to the date the Claim accrued and whether or not the Court has jurisdiction. Defendant has established that the date Claimant had the tests that indicated he had TB was May 29, 2014. This date is not controverted by Claimant. Claimant further asserts that he timely served his Notice of Intention in October 2014, because he filed an institutional grievance in August 2014, which was denied on October 9, 2014, and he filed an appeal on November 14, 2014 (id., ¶¶ 11, 12). Claimant argues that, under the Prison Litigation Reform Act (hereinafter, "PLRA"), a prisoner must exhaust his/her administrative remedies, even where the relief sought cannot be granted by the administrative process (42 USCA § 1997e[a]) (id., ¶ 17).
The Court notes that these causes of action were not included in the Claim.
Claimant's reliance upon the federal PLRA is misplaced, as the only requirement to exhaust administrative remedies that exists in the Court of Claims is with regard to inmates in the custody of DOCCS who seek damages for injury to or loss of personal property (Court of Claims Act § 10[9]; see Jorgensen v State of New York, UID No. 2007-013-037 [Ct Cl, Patti, J., Oct. 25, 2007). Here, Claimant is not seeking such recovery.
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]; De Marco 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]). Therefore, the Court concludes that Defendant established that the Notice of Intention was not timely served upon it.
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 finds that the Claim itself, which was filed on December 14, 2015, was not timely filed within 90 days of the Claim's accrual. Therefore, the Claim is dismissed.
In Claimant's opposition papers, counsel states that Claimant intends to file a Notice of Motion for Permission to File a Late Notice of Claim in order to move the Court for an Order to Grant Leave to File a late Notice of Claim (Silverman Affirmation, ¶ 33). The Court notes that, in Court of Claims' practice, there are two documents, a Notice of Intention to File a Claim and a Claim. There is no "Notice of Claim." Court of Claims Act § 10(6) provides only for the late filing of a Claim, not a Notice of Intention to File a Claim. In addition, pursuant to Court of Claims Act § 10(6), it is within the Court's discretion to allow the filing of a late claim if the applicable statute of limitations set forth in Article 2 of the CPLR has not expired. Thus, the first issue for determination upon any late claim motion is whether the application is timely. Here, Claimant appears to be asserting causes of action sounding in intentional tort, constitutional tort, and negligence, which have, respectfully, a one-year, three-year, and three-year Statute of Limitations (CPLR § 215[3], § 214[5], § 214[5]). As noted above, the Claim accrued on May 29, 2014. Thus, the applicable Statutes of Limitations appear to have expired already with respect to any such causes of action.
In addition, the Court notes that Claimant's counsel's Affirmation concludes with a statement in the "Wherefore Clause" that, in the alternative, the Court should "grant Claimant leave to Amend the Notice of Claim" (Silverman Affirmation, p. 18). The requested relief does not assist Claimant as the Notice of Intention was untimely, and amending the Notice of Intention does not cure that defect. In addition, Claimant did not submit a Notice of Motion or Cross-Motion.
July 18, 2018
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 for dismissal: Papers Numbered Notice of Motion, Affirmation, and Exhibits attached 1 Affirmation in Opposition & Exhibits Attached 2 Reply Affirmation 3 Filed Papers: Claim; Answer