State's Motion to Dismiss Claim as improperly served upon Defendant denied. Cross-motion to deem Notice of Intent a Claim denied as moot.
|Claimant short name:||FARIERA|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||Robert Fariera, Pro Se|
|Defendant's attorney:||BARBARA D. UNDERWOOD
Attorney General of the State of New York
By: Thomas Trace, Esq., Senior Attorney
|Third-party defendant's attorney:|
|Signature date:||May 22, 2018|
|See also (multicaptioned case)|
For the reasons set forth below, Defendant's Motion to dismiss the Claim based upon lack of subject matter and personal jurisdiction pursuant to CPLR 3211(a)(2) and (8) for failure to comply with the service requirements of Court of Claims Act § 11 is denied and Claimant's Cross-Motion to deem the Notice of Intention to File a Claim as a duly filed Claim pursuant to Court of Claims Act § 10(8)(a) is denied as moot.
This pro se Claim, which was filed with the office of the Clerk of the Court on August 29, 2016, asserts that, on February 10, 2016, Claimant fell at Central New York Psychiatric Center (hereinafter, "CNYPC"), while exiting a State van upon returning to CNYPC from a medical appointment. It is alleged that the State's employees were negligent in not assisting Claimant while he was exiting the vehicle.
Defendant seeks dismissal of the Claim on the basis that Claimant failed to serve the Claim upon Defendant in the manner required by Court of Claims Act § 11(a)(i) (Affirmation of Thomas Trace, Esq., Senior Attorney [hereinafter, "Trace Affirmation"], ¶ 4). As pertinent to the instant matter, Court of Claims Act § 11(a)(i) provides that the Claim be served personally or by certified mail, return receipt requested, upon the Attorney General within the time period provided in Court of Claims Act § 10(3).
In his affirmation submitted in support of the Motion, Defense counsel asserts that, on March 21, 2016, Claimant served a Notice of Intention to File a Claim upon the Attorney General by certified mail, return receipt requested (Trace Affirmation, ¶ 2 and Exs. A and B attached thereto). Counsel further asserts that Claimant served the Claim upon the Attorney General by regular mail on August 29, 2016 (Trace Affirmation, ¶ 2 and Exs. C and D attached thereto). In reviewing Exhibit D, which is a photocopy of the envelope in which the Claim purportedly was mailed, the Court notes that the photocopy is completely illegible. It is a black page with a white sticker in the corner that reads "US Postage." Claimant, in opposition to the State's Motion, asserts that, on August 23, 2016, he submitted a CNYPC Disbursement Request Form requesting certified mail, return receipt requested for mail (in the space labeled "Item Description") addressed to the Attorney General and the postage amount is filled in as $1.78 (see Affidavit of Robert E. Fariera [hereinafter, "Fariera Affidavit"], ¶ 3, and Ex. A attached). It is not clear from the form who filled out the form and Claimant does not state who filled out the form, although he does state that the request was authorized by Treatment Team Leader Linda Salerno. As Defense counsel points out in his Affirmation in Opposition to Claimant's Cross-Motion (hereinafter, "Trace Affirmation in Opposition"), the CNYPC Disbursement Request is not certified as an original, unaltered copy of a document kept in the regular course of business at CNYPC and, therefore, is not admissible evidence (Trace Affirmation in Opposition, ¶ 3).
The failure to properly serve the Attorney General gives rise to a defect in jurisdiction, which, if not raised with particularity, is subject to the waiver provisions of Court of Claims Act § 11(c) (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]; Knight v State of New York, 177 Misc 2d 181, 183 [Ct Cl 1998]).
Section 11 of the Court of Claims Act constitutes a jurisdictional prerequisite to the institution and maintenance of a claim against the State and, thus, must be strictly construed (Buckles v State of New York, 221 NY 418 ; Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]; Byrne v State of New York, 104 AD2d 782 [2d Dept 1984], appeal denied 64 NY2d 607 ). The Court cannot waive a defect in jurisdiction that has been timely raised (Thomas v State of New York, 144 AD2d 882 [3d Dept 1988]). While Defendant timely and properly raised, with particularity, in its Answer, dated October 5, 2016, as its Seventh Affirmative Defense, that the Claim was served by ordinary mail, and not served personally or by certified mail, return receipt requested, as required by Court of Claims Act § 11(a), Defendant failed to establish that the Claim was served by regular mail, as Exhibit D attached to counsel's Affirmation, a photocopy of the envelope in which the Claim was mailed, is illegible. Therefore, the Court concludes that Defendant failed to establish that the Claim was improperly served upon it.
Based upon the foregoing, Defendant's Motion is denied.
Assuming, arguendo, that the Claim had been dismissed, Claimant's Cross-Motion to deem the Notice of Intention to File a Claim as a duly filed Claim pursuant to Court of Claims Act § 10(8)(a) would have been granted.
As stated above, Claimant, on March 21, 2016, served a Notice of Intention to File a Claim upon the Attorney General by certified mail, return receipt requested. The Notice of Intention asserts that:
The time when and the place where such claim arose and the nature of my claim are as follows: On February 10, 2016, after being transported to St. Elizabeth's Hospital from [CNYPC], building 41, for a doctor[']s appointment[,] I was physically restrained by chains, handcuffs, and leg irons during transport[.] I arrived back at building 41 and was getting out of the van when I fell flat on my face[,] causing a fracture to my left sinus cavity and a severe sprain to my wrist which is still causing me pain.
I was being escorted by S.C.T.A. Travis Brown, and Safety Officer Mr. Cadie. It was Mr. Cadie's responsibility to assist me into and out of the van[,] which was not done[,] resulting in my injuries.
I will be seeking two million dollars ($2,000,000.00) in damages for pain and suffering due to the negligence of [CNYPC] staff failing to assist me getting out of the van while in restraints.
(Attached to Fariera Affidavit)
In the event the Court found that Claimant failed to properly serve the Claim upon Defendant as required by Court of Claims Act § 11(a)(i), Claimant sought an order pursuant to Court of Claims Act § 10(8)(a) deeming his Notice of Intention to be a Claim.
Court of Claims Act § 10(8)(a) provides:
A claimant who timely serves a notice of intention but who fails to timely serve or file a claim may, nevertheless, apply to the court for permission to treat the notice of intention as a claim. The court shall not grant such application unless: it is made upon motion 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; the notice of intention was timely served, and contains facts sufficient to constitute a claim; and the granting of the application would not prejudice the defendant.
As stated above, Claimant has established that he served a Notice of Intention upon the Attorney General by certified mail, return receipt requested, on March 21, 2016. The Cross-Motion is timely as it was served and filed within three years of accrual of the Claim (February 10, 2016) (see CPLR 214).
The next factor for the Court to consider is whether the Notice of Intention contains sufficient facts to constitute a Claim. The Court of Appeals, in Lepkowski v State of New York (1 NY3d 201, 207 ) stated: "[a]s relevant here, section 11 (b) places five specific substantive conditions upon the State's waiver of sovereign immunity by requiring the claim to specify (1) 'the nature of [the claim]'; (2) 'the time when' it arose; (3) the 'place where' it arose; (4) 'the items of damage or injuries claimed to have been sustained'; and (5) 'the total sum claimed.' " In Kolnacki v State of New York (8 NY3d 277, 280-281 ), the Court of Appeals said, "Lepkowski made clear that all of the requirements in section 11 (b) are 'substantive conditions upon the State's waiver of sovereign immunity' (1 NY3d at 207). The failure to satisfy any of the conditions is a jurisdictional defect."
In Little v State of New York, UID No. 2009-038-506 (Ct Cl, DeBow, J., Jan. 12, 2009), the Court further stated with regard to Court of Claims Act § 11(b):
The statement of facts required by Section 11 (b) of the Court of Claims Act must be "made with 'sufficient definiteness to enable the State to be able to investigate the claim promptly and to ascertain its liability under the circumstances. The statement must be specific enough so as not to mislead, deceive or prejudice the rights of the State. In short, substantial compliance with section 11 is what is required' " (Wharton v City Univ. of N.Y., 287 AD2d 559, 559-560 [2d Dept 2001], quoting Grumet v State of New York, 256 AD2d 441, 442 [2d Dept 1998]). "Although a Notice of Intention to file a claim need not include all the facts necessary to state a cause of action, it must at least set forth the general nature of the claim so as to give some indication of the manner in which the claimant was injured and how [defendant] was negligent and enable defendant to ascertain the existence and extent of its liability" (Cendales v State of New York, 2 AD3d 1165, 1167 [3d Dept 2003] [internal quotations omitted], quoting Sega v State of New York, 246 AD2d 753, 755 [3d Dept 1998], lv denied 92 NY2d 805  and Heisler v State of New York, 78 AD2d 767, 767-768 [4th Dept 1980]).
Here, the Court concludes that Claimant's Notice of Intention contains facts sufficient to constitute a Claim as it sets forth the nature of the Claim (i.e., negligence in failing to assist Claimant out of the vehicle), the time and place it arose, and that Claimant was injured. In addition, Defendant has failed to establish it will be prejudiced if the Notice of Intention is treated as a Claim.
May 22, 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 and Claimant's Cross-Motion to deem the Notice of Intention to File a Claim as a duly filed Claim pursuant to Court of Claims Act § 10(8)(a):
Notice of Motion, Affirmation, & Exhibits attached 1
Notice of Cross-Motion, Affidavit, & Exhibits attached 2
Defendant's Affirmation in Opposition 3
Papers filed: Claim, Answer