State's Motion to Dismiss on the basis the Claim was untimely served upon Defendant granted.
|Claimant(s):||REGINALD M. HALL|
|Claimant short name:||HALL|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||Reginald M. Hall, Pro Se|
|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:||August 9, 2017|
|See also (multicaptioned case)|
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 Defendant, as a result of Claimant's failure to timely serve the Claim as required by Court of Claims Act §§ 10(3) and 11(a)(i) is granted.
This pro se Claim, which was filed with the office of the Clerk of the Court on September 6, 2016, asserts that the State was negligent in failing to diagnose and treat his liver condition while he was incarcerated at Mid-State Correctional Facility. Claimant asserts that he advised the medical staff that he had a liver tumor, that he did not receive adequate medical care, and that a surgical procedure in April-May 2014 at Upstate Medical Center was negligently performed (Claim, p. 1).
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 [which applies to Claims asserting personal injuries caused by negligence or unintentional torts, including, but not limited to, those sounding in medical malpractice]). 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 ; Matter of Dreger v New York State Thruway Auth., 177 AD2d 762, 763 [3d Dept 1991], affd 81 NY2d 721 ; 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 office of the Clerk of the Court on September 26, 2016, Defendant asserted as its Sixteenth Affirmative Defense that "[t]his Court lacks subject matter jurisdiction over the [C]laim and personal jurisdiction over the [D]efendant, the State of New York, as the [C]laim is untimely in that although a timely [N]otice of [I]ntention was properly served, the [C]laim was not timely served as required by Court of Claims Act Sections 10 (3) and 11 as it was served more than two years after accrual of the [C]laim."
In his affirmation submitted in support of the State's Motion, Defense counsel asserts that the Claim accrued on August 1, 2014(1) when Claimant was last denied treatment, thus, the Notice of Intention to File a Claim, served upon Defendant on August 18, 2014, was timely. The Claim itself was not served in a timely manner, however, as it was not served until August 18, 2016, more than two years after the Claim accrued (Affirmation of Thomas Trace, Esq., ¶¶ 4 and 5).
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 ; 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 ; Buckles v State of New York, 221 NY 418 ; 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 ; Villa v State of New York, 228 AD2d 930, 931 [3d Dept 1996], lv denied 88 NY2d 815 ).
To the extent that Claimant asserts, in his opposition to the Motion, that the asserted deficiencies in the medical care he received violated his Federal constitutional rights, no action may be maintained in this Court against the State for alleged Federal constitutional violations (Shelton v New York State Liquor Auth., 61 AD3d 1145, 1151 [3d Dept 2009]; Lyles v State of New York, 194 Misc 2d 32, 35-36 [Ct Cl 2002], affd 2 AD3d 694, 696 [2d Dept 2003], affd on other grounds 3 NY3d 396 ; Matter of Thomas v New York Temporary State Comm. on Regulation of Lobbying, 83 AD2d 723 [3d Dept 1981], affd 56 NY2d 656 ). To the extent that the Claim asserts Federal constitutional violations, his remedy lies elsewhere. Similarly, any cause of action Claimant asserts against the State pursuant to 42 USC § 1983 must be dismissed since the State is not a "person" under the statute and the Court of Claims therefore lacks jurisdiction over such claims (Brown v State of New York, 89 NY2d 172, 185 ; Blake v State of New York, 145 AD2d 1336, 1337 [3d Dept 2016], lv denied 29 NY3d 908 ; Flemming v State of New York, 120 AD3d 848 [3d Dept 2014]; Shelton v New York State Liq. Auth., supra at 1148-1149; Walker v State of New York, UID No. 2017-015-242 [Ct Cl, Collins, J., June 21, 2017]). As this Court has no jurisdiction over these causes of action, they are dismissed.
Based upon the foregoing, Defendant's Motion is granted and the Claim is dismissed for failure to timely serve and file it in accordance with Court of Claims Act §§ 10(3) and 11(a)(i).
The Court notes that, by letter dated March 27, 2017, the parties were notified that the trial of this Claim was scheduled for November 1, 2017 at the Court of Claims in Utica, New York. That trial is now unnecessary.
August 9, 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 for dismissal:
Notice of Motion, Affirmation, and Exhibits Attached 1
Claimant's Opposition letters
dated May 22, 2017 and July 28, 2017 2
Papers filed: Claim, Answer
1. The Court notes that Claimant, likewise, states, in his July 28, 2017 letter, that his last date of treatment prior to his release was on August 1, 2014.