State's Motion to Dismiss Claim on basis that Notice of Intention was improperly served upon Defendant in violation of CCA and did not extend Claimant's time to serve and file the Claim granted.
|Claimant short name:||PERRY|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||Tyrone Perry, 15A3509, Pro Se|
|Defendant's attorney:||BARBARA D. UNDERWOOD
Acting Attorney General of the State of New York
By: Douglas R. Kemp, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||May 22, 2018|
|See also (multicaptioned case)|
For the reasons set forth below, Defendant's pre-Answer Motion to dismiss the Claim on the basis that the Notice of Intention was untimely served upon Defendant in violation of Court of Claims Act §§ 10 and 11, and, thus, did not extend Claimant's time to serve and file the Claim, resulting in the Claim being untimely served and filed pursuant to Court of Claims Act § 10, is granted.
This pro se Claim, which was filed in the office of the Clerk of the Court on February 7, 2018, alleges that, on August 29, 2017, Claimant was transferred from Franklin Correctional Facility to Ulster Correctional Facility (hereinafter, "Ulster") so that he could attend the funeral of his grandmother (Claim, ¶¶ 2, 3). It is further alleged that, on the date of the funeral, Claimant was not taken to his grandmother's funeral because of "[s]ecurity concerns" (id., ¶ 5). The Claim further asserts that, for the two weeks Claimant was housed at Ulster, he did not have a change of clothing or any personal hygiene products (id., ¶ 6). Claimant asserts that Defendant was negligent in not taking him to his grandmother's funeral after he was approved for the trip, and transferred, and for housing him at Ulster for two weeks without a change of clothing or personal hygiene products.
Pursuant to the Court of Claims Act provisions applicable to negligence 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). 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 his affirmation submitted in support of Defendant's Motion, Defense counsel asserts that, on January 3, 2018, Claimant served a Notice of Intention to File a Claim upon the Attorney General (Affirmation of Douglas R. Kemp, Esq., Assistant Attorney General [hereinafter, "Kemp Affirmation"], ¶ 4, and Ex. A attached). On January 29, 2018, Claimant served the Office of the Attorney General with a Claim (id., ¶ 5, and Ex. B attached).
Here, the Notice of Intention was served on January 3, 2018, which is more than 90 days after the negligence cause of action for failure to attend his grandmother's funeral accrued on August 31, 2017. As noted by Defendant, Claimant's cause of action alleging Defendant was negligent in depriving him of a change of clothing and personal hygiene items for two weeks, does not allege an accrual date. However, two weeks from August 31, 2017 is September 14, 2017. Thus, the Notice of Intention served on January 3, 2018 is more than 90 days after that cause of action accrued as well.
In opposition to Defendant's Motion, Claimant asserts that he spoke to a law library clerk at the correctional facility and was advised he had to file a grievance, pursuant to Court of Claims Act § 10(9) prior to serving a Notice of Intention or serving and filing a Claim (Claimant's Reply, ¶¶ 2, 3). Unfortunately for Claimant, he was provided incorrect information. Court of Claims Act § 10(9) applies to inmates who have lost property at a correctional facility. However, ignorance of the law or the fact Claimant received incorrect information does not excuse the fact that he did not follow the correct provision of the Court of Claims Act.
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 ; 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 this pre-Answer Motion in accordance with Court of Claims Act § 11(c).
Based upon the foregoing, Defendant's pre-Answer Motion is granted and the Claim is hereby dismissed for failure to timely serve the Notice of Intention upon the Attorney General as required by Court of Claims Act §§ 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 February 7, 2018, was not timely filed within 90 days of the Claim's accrual. Therefore, the Claim is dismissed.
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:
Notice of Motion, Affirmation, and Exhibits attached 1
"Reply Brief" and Affidavit in Opposition 2
Filed Papers: Claim