New York State Court of Claims

New York State Court of Claims
GONZALEZ v. STATE OF NEW YORK, # 2018-040-054, Claim No. 127820, Motion No. M-91903

Synopsis

State's Motion to Dismiss denied. Unverified Notice of Intent properly rejected but defect not raised as defense in pre-Answer Motion or in Answer. Therefore, the defense is waived.

Case information

UID: 2018-040-054
Claimant(s): LUIS GONZALEZ
Claimant short name: GONZALEZ
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 127820
Motion number(s): M-91903
Cross-motion number(s):
Judge: CHRISTOPHER J. McCARTHY
Claimant's attorney: Luis Gonzalez, #14A3662, Pro Se
Defendant's attorney: BARBARA D. UNDERWOOD
Attorney General of the State of New York
By: Christina Calabrese, Esq., AAG
Third-party defendant's attorney:
Signature date: May 24, 2018
City: Albany
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

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 both subject matter jurisdiction over the Claim and personal jurisdiction over the Defendant, is denied.

This pro se Claim was filed in the office of the Clerk of the Court on April 20, 2016 and alleges that, on February 8, 2015 at 6:30 p.m. at Bare Hill Correctional Facility, Claimant was "walking in the vicinity of the Annex compound gate," when he slipped and fell on an accumulation of ice and snow (Claim, 3). Claimant asserts that the snow and ice was not shoveled or sanded and constituted a dangerous condition (id., 4). He further asserts that Defendant knew or should have known of the dangerous condition (id., 5). Claimant also asserts that he did not receive appropriate medical care for the injury to his ankle. He states that x-rays were not taken until three days after the accident and that he did not see a doctor until February 17, 2015, nine days after his fall, when his ankle, which was fractured in three places, was placed in a cast (id., 7, 8, 9, 11).

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[3]). 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 [1989]; Matter of Dreger v New York State Thruway Auth., 177 AD2d 762, 763 [3d Dept 1991], affd 81 NY2d 721 [1992]; 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 May 19, 2016, Defendant asserted as its Eighth 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 neither the [C]laim nor a [N]otice of [I]ntention was served within ninety (90) days of the accrual of the [C]laim as required by Court of Claims Act [] 11 and Court of Claims Act [] 10 (3)."

In her affirmation submitted in support of the State's Motion, Defense counsel asserts that the Claim accrued on February 8, 2015 and, therefore, Claimant should have timely filed and served his Claim or Notice of Intention by May 8, 2015 (Affirmation of Christina Calabrese, Esq., AAG [hereinafter, "Calabrese Affirmation"], 9). Counsel further asserts that no Notice of Intention was served upon Defendant (id.). Defendant relies upon the Affidavit of Debra L. Mantell, a Legal Assistant II in the Albany Office of the Attorney General (Calabrese Affirmation, Ex. C). Ms. Mantell attests that she is familiar with the digital case management system maintained by the Attorney General's Office regarding notices of intention to file claims, claims, and motions that are received in the Attorney General's Office. She further attests that, following a search of the Attorney General's digital case management database system, she found no record that Claimant had served a Notice of Intention to File a Claim upon the Attorney General for an incident that occurred on or about February 8, 2015 at Bare Hill Correctional Facility (Mantell Affidavit, 10). However, her search did establish that Claimant served a Claim, by certified mail, return receipt requested, upon Defendant on April 22, 2016 (id., 5, 9). Defendant asserts that, since the Claim was not served and filed within 90 days of the date of the Claim's accrual on February 8, 2015, as required by Court of Claims Act 10(3), the Claim must be dismissed (id., 9).

In opposition to Defendant's Motion, Claimant asserts that his Claim includes two separate allegations of negligence on the part of Defendant, one that accrued on February 8, 2015, when he slipped and fell, and the other for a delay in medical treatment that accrued on February 17, 2015, when he was seen by a physician for his injury (Gonzalez Affidavit, 3[a], [f], and [g]). In addition, Claimant also avers that, on or about April 25, 2015, he served a Notice of Intention to File Claim upon the Attorney General of the State of New York (see Ex. A attached to Gonzalez Affidavit). He asserts that the Notice of Intention was mailed certified mail, return receipt requested (Gonzalez Affidavit, 4, and Ex. B attached).

Mr. Gonzalez further avers that, on or about May 1, 2015, the Office of the Attorney General rejected the Notice of Intention on the grounds that the Notice of Intention was not verified (Gonzalez Affidavit, 5, and Ex. C attached). Claimant states he immediately mailed a second Notice of Intention to File Claim to the Attorney General. The second Notice of Intention to File Claim was verified and also was sent certified mail, return receipt requested (id., 6, and Exs. D & E attached). The return receipt indicates that the Notice of Intention was received by the Attorney General's office on May 18, 2015 (id., 6, and Ex. E attached).

The Court notes that Defendant has not controverted Claimant's assertions by submitting any reply papers. Therefore, the Court finds and concludes that Claimant served two Notices of Intention regarding the instant Claim. The first was served by certified mail, return receipt requested, on May 1, 2015 and was rejected as unverified. The second was properly verified, and served by certified mail, return receipt requested, on May 18, 2015. CPLR 3022 states when a pleading is required to be verified, the recipient of an unverified or defectively verified pleading may treat it as a nullity provided that the recipient "with due diligence returns the pleading with notification of the reason(s) for deeming the verification defective" (Lepkowski v State of New York, 1 NY3d 201, 210 [2003]; citing Matter of Miller v Board of Assessors, 91 NY2d 82, 86 [1997]).

Court of Claims Act 11(b) requires that notices of intention and claims "be verified in the same manner as a complaint in an action in the [S]upreme [C]ourt". The Court of Appeals has declared that the language means precisely what it says and, thus, "embraces CPLR 3022's remedy for lapses in verification" (Lepkowski v State of New York, supra at 210). Thus, the sufficiency of Claimant's verification and Defendant's rejection at issue in this Claim must be evaluated in the same manner as they would be in any other court where practice is governed by the CPLR. "A Defendant who does not notify the adverse party's attorney with due diligence waives any objection to an absent or defective verification" (id.).

Defendant timely and properly rejected Claimant's unverified Notice of Intention. However, as stated above, pursuant to Court of Claims Act 11(c), 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, supra). Here, Defendant did not make a pre-Answer Motion to dismiss and did not raise in its Answer the defense that the Notice of Intention is defective as it is not verified as required by Section 11(b) of the Court of Claims Act and, therefore, did not extend the time to file a Claim pursuant to Section 10(3) of the Court of Claims Act (see Fraser v State of New York, UID No. 2017-040-023 [Ct Cl, McCarthy, J., Feb. 27, 2017]; see also Thomas v State of New York, UID No. 2014-040-042 [Ct Cl, McCarthy, J., July 30, 2014]). Thus, the defense has been waived (see Edgerton v State of New York, UID No. 2017-040-128 [Ct Cl, McCarthy, J., Sept. 25, 2017]; Hankins v State of New York, UID No. 2008-040-010 [Ct Cl, McCarthy, J., Feb. 25, 2008]). Accordingly, the State's Motion to dismiss is denied.

May 24, 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 to dismiss:

Papers Numbered

Notice of Motion, Affirmation in Support,

and Exhibits attached 1

Affidavit in Opposition and Exhibits attached 2

Filed Papers: Claim, Answer