Defendant's motion to dismiss claim for lac of service upon the Attorney General granted. Claimant's request to treat the notice of intention as the claim denied for lack of motion and for untimeliness.
|Claimant(s):||MAURICE WALLACE DIN# 10A4795|
|Claimant short name:||WALLACE|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||MAURICE WALLACE, Pro se|
|Defendant's attorney:||BARBARA D. UNDERWOOD, Attorney General
of the State of New York
By: Heather R. Rubinstein, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||August 8, 2018|
|See also (multicaptioned case)|
Claimant, an individual incarcerated in a state correctional facility, filed this "amended" claim in which he alleges that he was assaulted by another inmate at Green Haven Correctional Facility (CF) on February 2, 2012.(1) After the trial of the claim had been scheduled for June 7, 2018, defendant filed this motion to dismiss the claim on the ground that it has not been served with the claim, which was made returnable on June 6, 2018. Claimant made no written submission before the return date. When the claim was called for trial on June 7, 2018, both parties were heard on the motion and the return date of the motion was adjourned nunc pro tunc to July 3, 2018 to permit the parties to make further written submission. Claimant and defendant subsequently submitted papers on the motion.
Court of Claims Act § 11 (a)(i) requires that a claim such as this be served upon the Attorney General. 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]).
In support of its motion, defendant submits an affidavit of Debra L. Mantell, a legal assistant II in the Office of the Attorney General (OAG), who avers that it is the "OAG's business practice to record in the digital case management system claimant's full name as it appears on the Notice of Intention to File a Claim and/or Claim (and claimant's DIN number, if claimant is an inmate and identified his DIN number), the date of incident, location of incident (including the facility for inmate Claims), the county in which the incident accrued, a description of the allegations contained within the document and the ad damnum amount." (Rubinstein Affirmation, Exhibit A [Mantell Affidavit, ¶ 4]). On or about June 19, 2012, OAG received a letter acknowledging receipt and filing of a claim, and Mantell averred that a search of OAG's records produced no record of a claim, and that "OAG created a record in the digital case management system of OAG's receipt of the 'unmatched' Court letter" (id., ¶ 5). Mantell avers that on April 25, 2018, the OAG requested a copy of the claim that was referenced in the Court's June 19, 2012 letter, that upon receipt of a copy of the filed claim, a search of the OAG's digital case management system disclosed that the OAG was served with a notice of intention on April 20, 2012 by certified mail return receipt requested (CMRRR) bearing certified mail number 7010 0290 0000 1591 9035 (id., ¶ 7 [a]).(2) Mantell asserts that the OAG was never served with a claim from claimant for an incident that occurred on or about February 2, 2012 at Green Haven CF. Defendant's submission establishes prima facie that the OAG was served with a notice of intention on April 20, 2012, but was not served with the claim that was filed with the Court. Claimant has not filed an affidavit of service of the claim on the OAG.
At the trial proceedings on June 7, 2018, claimant conceded under oath that the document that he mailed bearing certified mail number 7010 0290 0000 1591 9035 was a notice of intention to file a claim and not the claim. Claimant testified that he served the claim by CMRRR sometime after the February 2, 2012 incident, around the same time that he served the notice of intention, that the certified mail number started with "7002" and that he received a receipt indicating service upon OAG, which was subsequently lost. The trial proceedings were adjourned to permit claimant an opportunity to make a written response to the motion and to allow OAG to search its records to locate any document that was served on it by claimant that bore a certified mail number that started with the number "7002." Counsel for defendant submits that the OAG's files were searched again and that "[t]he outcome of the additional search was the same as the outcome for the original search" (Rubinstein Correspondence, dated June 8, 2018), i.e. that there is no record of this claim ever having been served on the OAG. In claimant's written response he argues the merits of his claim and requests that the claim not be dismissed and that the notice of intention be treated as the claim pursuant to Court of Claims Act § 10 (8)(a).
Claimant's testimony that he served the claim on the Attorney General by CMRRR was imprecise, inconsistent and confusing. The Court notes that although the notice of intention was mailed on April 17, 2012 (see Certified Mail Receipt, filed July 3, 2012), that mailing post-dates claimant's verification of the claim on April 4, 2012 (see Claim number 121258-A, verified April 4, 2012). That claimant would serve a notice of intention instead of serving the claim that was in his possession defies logic. Also, it is curiously inconsistent that claimant had the foresight and diligence to retain and file a copy of the certified mail receipt for the notice of intention, but not for the claim itself. Thus, the Court does not credit claimant's testimony that he served the claim on the Attorney General by CMRRR and finds his proof on the matter to be outweighed by defendant's proof that the Attorney General was not served with the claim. Thus, the claim is jurisdictionally defective and must be dismissed.
Claimant's request for permission to treat the notice of intention as the claim under Court of Claims Act § 10 (8) will be denied for the following reasons. First, the request was submitted in reply to defendant's motion, and not "made upon motion" as required by Court of Claims Act § 10 (8)(a). Moreover, the even if the Court were to ignore this procedural misstep, the request is untimely because it was required to have been made "before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules" (Court of Claims Act § 10  [a]; (see Maendel v State of New York, 178 Misc 2d 297 [Ct Cl 1998]; Brooks v State of New York, UID No. 2001-001-031 [Ct Cl, Read, J., June 22, 2001]; see also Matter of Miller v State of New York, 283 AD2d 830, 831 [3d Dept 2001]). This claim seeks to recover for personal injury and is therefore subject to a three-year statute of limitations (see CPLR 214 ). Having accrued on February 2, 2012, the time within which to file a motion to treat the notice of intention as the claim expired on February 2, 2015, more than three years before he requested such relief.
Accordingly it is
ORDERED, that defendant's motion number M-92236 is GRANTED, and claim number 121258-A is DISMISSED.
August 8, 2018
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Claim number 121258-A, verified April 4, 2012 and filed May 2, 2012;
(2) Certified Mail Receipt bearing certified mail number 7010 0290 0000 1591 9035,
filed July 3, 2012;
(3) Notice of Motion, dated May 7, 2018;
(4) Affirmation of Heather R. Rubinstein, AAG, dated May 7, 2018, with Exhibits A-D
including the Affidavit of Debra L. Mantell, sworn to May 1, 2018;
(5) "So Ordered" Correspondence of the Hon. W. Brooks DeBow,
dated June 7, 2018;
(6) Correspondence of Heather R. Rubinstein, AAG, dated June 8, 2018;
(7) Correspondence of Maurice Wallace, dated June 25, 2018;
(8) Correspondence of Maurice Wallace, dated June 25, 2018;
(9) Correspondence of Hon. W. Brooks DeBow, dated July 18, 2018;
(10) Affirmation in Opposition of Heather R. Rubinstein, dated July 31, 2018.
1. Although no claim had been previously filed, the claim was captioned as an "amended claim" and the Clerk assigned the claim that was filed on May 2, 2012 Claim number 121258-A.
2. On July 3, 2012, claimant filed certified mail receipts bearing certified mail number 7010 0290 0000 1591 9035, which contain a postmark of April 17, 2012 which indicate that the certified mail was received by the OAG on April 20, 2012.