Defendant's motion to dismiss on jurisdictional grounds granted. Notice of intention to file claim was served more than 90 days after the date of accrual. Even if the notice of intention had been timely filed, the claim was not filed and served until more than two years thereafter.
|Claimant(s):||JAMEL UPSON, 72765054|
|Claimant short name:||UPSON|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||JAMEL UPSON, Pro se|
|Defendant's attorney:||BARBARA D. UNDERWOOD, Attorney General
of the State of New York
By: Paul F. Cagino, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||July 27, 2018|
|See also (multicaptioned case)|
Claimant, an individual formerly incarcerated in a State correctional facility, filed this claim in which he alleges that he was denied medical attention while in a Special Housing Unit (SHU) at Upstate Correctional Facility (CF). Defendant moves in lieu of answer to dismiss the claim on jurisdictional grounds, asserting that it was not timely served upon the Attorney General. Claimant has not submitted any papers in opposition to the motion.
The claim was filed in the Court of Claims and served on the Office of the Attorney General on November 13, 2017, and it states an accrual date of April 30, 2015 (see Claim No. 130544, ¶ 4; see also Cagino Affirmation, Exhibit B). The claim alleges that claimant was denied medical attention by several nurses on that date while incarcerated in SHU at Upstate CF (see also, Claim No. 130544, ¶ 2), and that Nurse White denied him medical care "[o]n the following day (5/1/16) [sic] during the 7 a.m. medication run" (id.). The claim further alleges that after a subsequent examination by Nurse Williamson later that day, claimant was "sent to an outside hospital where [he] was diagnosed [witha] bowel obstruction . . . [and hospitalized] from 5/1/16 to 5/6/16 [sic]" (id.). The claim asserts that a notice of intention to file this claim was sent to the Attorney General and was "received on May 6th, 2016 . . . while [claimant] was in the Westchester County Jail in Valhalla, New York" (id., p.3).
There is manifest inconsistency in the claim as to whether it accrued in 2015 or 2016. That inconsistency is easily resolved, however, as defendant's submission includes documents that clearly establish that the claim accrued in 2015 and that the references in the claim to 2016 are erroneous. First, the notice of intention that was received by the Office of the Attorney General on May 6, 2016 is dated and sworn to by claimant on April 13, 2016 (see Cagino Affirmation, Exhibit A), and thus, the allegations in the notice of intention could not have occurred on April 30 and May 1, 2016, as those dates fall after the date of the notice of intention. An additional document from claimant that was received by the Attorney General on May 6, 2016 with the notice of intention is supported by a decision by the Central Office Review Committee (CORC) denying claimant's grievance regarding the nurses' behavior in 2015. The CORC decision reflects that the grievance was filed by claimant on May 13, 2015 and that a hearing on the matter was conducted on October 7, 2015, and it recites several related events that occurred in 2015 (see id. [4/14/16 Upson Memorandum by claimant, Exhibit D]). Thus, and in the absence of dispute from claimant, the Court concludes that references within the body of the claim to events in 2016 are typographical errors, and that the claim accrued in 2015, as is affirmatively alleged in paragraph 4 of the claim.
Court of Claims Act §§ 10 (3) and 11 (a) (i) require, inter alia, that a notice of intention to file a claim or the claim itself be served upon the Attorney General within 90 days after accrual of the claim. A timely served notice of intention will extend the time within which to serve and file the claim to two years after the date of accrual of a claim sounding in negligent or unintentional torts (see Court of Claims Act § 10 ). It is well established that the filing and service requirements of the Court of Claims Act are jurisdictional in nature, and that the failure to timely serve the claim upon the Attorney General deprives the Court of subject matter jurisdiction (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 ; Matter of Dreger v New York State Thruway Auth., 177 AD2d 762, 762-763 [3d Dept 1991], affd 81 NY2d 721 ; Locantore v State of New York, UID No. 2009-038-517 [Ct Cl, DeBow, J., Feb. 11, 2009]).
Defendant has established that the notice of intention was served on the Attorney General on May 6, 2016, which is more than 90 days after the claim's April 30, 2015 accrual date. Thus, claimant's time within which to file and serve the claim was not extended beyond 90 days. Accordingly, the claim is untimely and must be dismissed. Moreover, even if the notice of intention was timely served and extended the time for filing and service by two years to April 30, 2017, claimant's service and filing of the claim on November 13, 2017 was untimely, which would also require dismissal of the claim (see Court of Claims Act § 10 ; Nanton v State of New York, UID No. 2017-038-578 [Ct Cl, DeBow, J., Oct. 12, 2017]).
Accordingly, it is
ORDERED, that defendant's motion number M-92257 is GRANTED, and claim number 130544 is DISMISSED.
July 27, 2018
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Claim number 130544, filed November 13, 2017;
(2) Notice of Motion to Dismiss in Lieu of Answer, dated December 21, 2017;
(3) Affirmation of Paul F. Cagino, AAG, in Support of Motion to Dismiss, dated
December 21, 2017, with Exhibits A-B;
(4) Affidavit of Service of Serena Campon, sworn to December 21, 2017.