State's Pre-Answer Motion to Dismiss on basis Claim was not timely served as required by the Court of Claims Act and is barred as the Statute of Limitations has expired is granted.
|Claimant short name:||GOODE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||Kevin Goode, Pro Se|
|Defendant's attorney:||BARBARA D. UNDERWOOD
Attorney General of the State of New York
By: William E. Arnold, IV, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||August 3, 2018|
|See also (multicaptioned case)|
For the reasons set forth below, Defendant's Pre-Answer Motion to dismiss the Claim, pursuant to CPLR 3211(a)(2) and (8), on the basis that the Court lacks subject matter jurisdiction over the Claim, and personal jurisdiction over Defendant as a result of Claimant's failure to timely serve the Claim as required by Court of Claims Act §§ 10(3-b) and 11(a)(i), and that the Claim is barred as the Statute of Limitations has expired, is granted. The remainder of the Motion is denied as moot.
This pro se Claim, which was filed with the office of the Clerk of the Court on March 20, 2018, asserts that Claimant was confined in Central New York Psychiatric Center (hereinafter, "CNYPC") during the times complained of in the Claim. Currently, Claimant is being temporarily housed in the Manhattan Psychiatric Center while awaiting trial under Article 10 of the Mental Hygiene Law for a judicial determination as to whether he is a sex offender in need of civil commitment or supervision. Claimant asserts that, while at CNYPC, sometime in 2017, he requested to review the information in his health information management service (hereinafter, "HIMS") records (Claim, ¶¶ 9-10). After his review, Claimant objected to the following statement contained in his records: "Patient raped woman then strangled her and her 2 year old son to death" (Claim, ¶¶ 12, 15). The Claimant alleges that Dr. Elisabeth M. Gray placed this statement in Claimant's records (id.). Claimant formally contested the accuracy of this statement and, on or about November 10, 2017, received a "final determination" denying his request for amendment because the statement "has been found to be accurate and complete[.] No changes will be made at this time" (Claim, p. 2 and Ex. 2 attached thereto).
Claimant asserts that this statement is false because, in April 1971, before Claimant's criminal trial, the District Attorney's Office decided not to prosecute Claimant for "sexual abuse" and "burglary" (Claim, ¶ 4). However, Claimant was prosecuted for "two counts of murder and one count of [a]rson" and received 15 years to life for the two counts of murder and 15 years for the arson charge (id.). He further alleges that he was not sentenced for any criminal charges of sexual abuse nor any form of a rape, upon a child, male or female (id.).
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 one year for the intentional tort of defamation (Court of Claims Act § 10[3-b]; see CPLR § 215). 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, Claimant served the Notice of Intention to File A Claim upon Defendant by certified mail, return receipt requested, on November 6, 2017, and the Claim upon Defendant by certified mail, return receipt requested, on March 19, 2018 (Affirmation of William F. Arnold, IV, Esq., Assistant Attorney General [hereinafter, "Arnold Affirmation"], ¶ 3). Defendant asserts that a cause of action for defamation accrues on the date of publication and not the date Claimant learned of the alleged libelous statements (id., ¶¶ 10, 12). Claimant further asserts, in both the Notice of Intention to File a Claim and the Claim, that Dr. Gray placed the allegedly-libelous statement in his HIMS records on March 1, 2017 (id., ¶ 11; see Claim ¶¶ 1, 3, 8, 14). Thus, making the Notice of Intention to File a Claim that was served upon Defendant on November 6, 2017 and the Claim that was served upon Defendant on March 19, 2018, and filed with the Office of the Clerk of the Court on March 20, 2018, untimely (id., ¶ 12).
In opposition to the Motion, Claimant asserts that the Claim is timely, in that he served the Notice of Intention to File a Claim within 90 days of discovering the allegedly-libelous statement (Claimant's Statement in Opposition, ¶¶ 3, 5-9(1) ).
A cause of action for defamation accrues on the date of first publication (Gelbard v Bodary, 270 AD2d 866, 866 [4th Dept 2000]; Teneriello v Travelers Cos., 226 AD2d 1137, 1138 [4th Dept 1996], lv denied 89 NY2d 801 ), here alleged to be March 1, 2017(2) , not on the date Claimant allegedly learned of the statement (Seymour v New York State Elec. & Gas Corp., 215 AD2d 971, 972 [3d Dept 1995]; McPhillips v State of New York, UID No. 2017-038-552 [Ct Cl, DeBow, J., Aug. 16, 2017]). Thus, the Notice of Intention served upon Defendant on November 6, 2017 was not served within 90 days of the Claim's accrual.
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]; DeMarco 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).
Therefore, Defendant's Motion to dismiss the Claim as untimely is granted and the Claim is dismissed for failure to timely serve and file the Claim in accordance with Court of Claims Act §§ 10(3-b) 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 remainder of the Motion is denied as moot.
August 3, 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:
Notice of Motion, Affirmation in Support
and Exhibits Attached 1
Claimant's Opposition to Defendant's Motion 2
Reply Affirmation 3
Filed Papers: Claim
1. Claimant filed a "Notice of Pre-Answer Motion Not to Dismiss along with an Affirmation in Support. The Court notes that the Affirmation is not sworn to before a Notary. The Office of the Clerk of the Court took Claimant's papers as opposition papers to Defendant's Motion, and the Court considers them as such.
2. It appears from Ex B attached to the Arnold Affirmation that the allegedly-libelous statement was added to Claimant's records as early as September 24, 2007 (see Arnold Affirmation, ¶ 13).