Claim is dismissed where service of claim upon Attorney General by regular mail is insufficient to confer subject matter jurisdiction; application to file late claim is denied for lack of appearance of merit.
|Claimant short name:||WARRINGTON|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The caption is amended to reflect the proper defendant.|
|Judge:||FRANK P. MILANO|
|Claimant's attorney:||NOVO LAW FIRM, P.C.
By: Ellie Silverman, Esq.
|Defendant's attorney:||HON. BARBARA D. UNDERWOOD
New York State Attorney General
By: Glenn C. King, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 25, 2018|
|See also (multicaptioned case)|
Defendant moves to dismiss this claim based upon claimant's failure to properly serve the claim upon the Attorney General. In particular, defendant has submitted proof that the claim was served upon the Attorney General by regular mail rather than personally or by certified mail, return receipt requested. Claimant opposes the defendant's motion to dismiss the claim and cross-moves for permission to file a late claim pursuant to Court of Claims Act 10 (6). Defendant opposes the claimant's cross-motion.
Claimant does not deny that the claim was not served either personally or by certified mail, return receipt requested.
Court of Claims Act 11 (a) (i), provides, at relevant part:
"[A] copy [of the claim] shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for filing with the clerk of the court."
Claimant is required to satisfy the "literal notice requirements of Court of Claims Act § 11" (Femminella v State of New York, 71 AD3d 1319 [3d Dept 2010]). Any manner of service other than personal service or certified mail, return receipt requested, is insufficient to strictly fulfill the statutory criteria (Femminella 71 AD3d at 1320).
Miranda v State of New York (113 AD3d 943, 943-944 [3d Dept 2014]), explains that service of a claim by regular mail upon the Attorney General is insufficient to provide subject matter jurisdiction over the claim:
"Pursuant to Court of Claims Act § 11 (a) (i), a notice of claim must be served upon the Attorney General either personally or by certified mail, return receipt requested (see Spaight v State of New York, 91 AD3d 995, 995 ; Femminella v State of New York, 71 AD3d 1319, 1320 ). Here, claimant's substituted manner of service--priority mail--did not strictly comply with the statutory requirements (see Femminella v State of New York, 71 AD3d at 1320; Filozof v State of New York, 45 AD3d 1405, 1406 ; Hodge v State of New York, 213 AD2d 766, 767 ; Newman v State of New York, 5 Misc 3d 640, 642 ). That failure 'divests the court of subject matter jurisdiction,' and, therefore, dismissal of the claim was required (Caci v State of New York, 107 AD3d 1121, 1122  [internal quotation marks and citation omitted]; accord Kolnacki v State of New York, 8 NY3d 277, 281 ). As a result, we need not reach the alternative grounds for dismissal advanced by defendant." (emphasis added)
The Court notes that lack of subject matter jurisdiction is a non-waivable defect that may be raised at any time, even for the first time on appeal, and cannot be remedied by either waiver or estoppel (Caci v State of New York, 107 AD3d 1121, 1122-1123 [3d Dept 2013]; see Burke v Aspland, 56 AD3d 1001, 1003 [3d Dept 2008], lv denied 12 NY3d 709 ).
The Court lacks subject matter jurisdiction over the claim, which was admittedly served by regular mail.
The defendant's motion to dismiss the claim is granted. The claim is dismissed.
Claimant cross-moves for permission to file a late claim pursuant to Court of Claims Act 10 (6). Defendant opposes the application.
The proposed claim, which is a copy of the dismissed claim which was verified by claimant on April 20, 2017, specifically alleges that the inmate-claimant was intentionally physically and sexually assaulted by correction officers at Bare Hill Correctional Facility on February 1, 2017 and was denied medical treatment for the ensuing injuries:
"[O]n February 1, 2017, at approximately 4:00 P.M., . . . [claimant] was assaulted, sexually assaulted and battered by [correction officers who] forced Claimant to strip naked and then punched him various times in his ribs and head and then proceeded to strike him as many as twelve (12) times to his buttocks . . . [and] then proceeded to place Claimant in a vicious choke hold which caused him to lose consciousness. As a result of this violent sexual assault and battery, Claimant sustained various rib injuries, head injuries, temporary loss of hearing, facial lacerations and bruising [and] was also maliciously denied medical treatment for all of the above mentioned injuries caused by Defendants."
The proposed claim further alleges that claimant was denied certain state and federal constitutional rights and was falsely imprisoned and subjected to unconstitutional solitary confinement. Finally, the proposed claim alleges that the "injuries sustained by Claimant . . . were due to the misconduct and negligence of [the defendant], its agents, servants and/or employees in the course of their duty(ies); in negligent hiring and supervision practices . . . [and] in being otherwise negligent, careless, reckless and grossly negligent."
Court of Claims Act 10 (6) provides that the Court, upon application and in its discretion, may permit the late filing and service of a claim "at any time 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 application to file a late claim was served on or about June 26, 2018, nearly seventeen (17) months after the cause of action for assault/battery accrued, on or about February 1, 2017.
Claimant's cause of action for intentional physical and/or sexual assault and battery is time-barred by the one-year limitations period provided by CPLR 215.
In determining a late claim application, Court of Claims Act 10 (6) provides that:
"[T]he court shall consider, among other factors, whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy."
In reviewing a late claim application, "the Court of Claims is required to consider, among other factors, those enumerated in Court of Claims Act § 10 (6), no one factor being controlling" (Matter of Donaldson v State of New York, 167 AD2d 805, 806 [3d Dept 1990]; see Matter of Duffy v State of New York, 264 AD2d 911, 912 [3d Dept 1999]). In fact, "[n]othing in the statute makes the presence or absence of any one factor determinative" (Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979, 981 ).
Further, "it is well settled that the Court of Claims' broad discretion in this area should be disturbed only in the face of clear abuse" (Calco v State of New York, 165 AD2d 117, 119 [3d Dept 1991], lv denied 78 NY2d 852 ).
Claimant has not offered his own affidavit in support of his application to serve a late claim and instead relies upon his attorney's affirmation and a copy of his previously filed (and now dismissed) verified claim.
Claimant has failed to offer a reasonable excuse for delay in serving the claim. Claimant's attorney argues that claimant failed to timely serve his claim because claimant busy was pursuing various prison facility grievances in order to exhaust claimant's administrative remedies. This argument lacks merit because claimant was not required to exhaust any administrative remedies with respect to his tort-based personal injury allegations.
Claimant has failed to provide any admissible competent evidence showing that defendant had timely notice of the essential facts and an opportunity to investigate the proposed claim. Even so, there has been no showing that the defendant would be prejudiced by granting late claim relief.
Claimant has an alternative remedy in United States District Court for purported federal constitutional violations with respect to the defendant's alleged unconstitutional acts and omissions. Claimant has an alternative remedy for his grievance-related allegations, his state constitutional tort allegations and his allegations of false imprisonment or unlawful solitary confinement through CPLR Article 78 proceedings or through CPLR Article 70 habeas corpus proceedings.
Most importantly, Court of Claims Act 10 (6) requires that the proposed claim not be "patently groundless, frivolous or legally defective, and [that] upon consideration of the entire record, there is cause to believe that a valid cause of action exists" (Rizzo v State of New York, 2 Misc 3d 829, 834 [Ct Cl 2003]; see Dippolito v State of New York, 192 Misc 2d 395 [Ct Cl 2002]; Remley v State of New York, 174 Misc 2d 523 [Ct Cl 1997]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]).
To sustain a cause of action for medical negligence or malpractice, a claimant must prove, generally through expert medical opinion testimony, two essential elements: (1) a deviation or departure from accepted practice, and (2) that such departure was a proximate cause of claimant's injury (Carter v Tana, 68 AD3d 1577, 1579 [3d Dept 2009]).
It is well settled that "[g]eneral allegations of medical malpractice, [which are] merely conclusory and unsupported by competent evidence tending to establish [its] essential elements ... are insufficient" to state a prima facie case (Alvarez v Prospect Hosp., 68 NY2d 320, 325 ).
Further, "[w]here medical issues are not within the ordinary experience and knowledge of lay persons, expert medical opinion is a required element of a prima facie case" (Wells v State of New York, 228 AD2d 581, 582 [2d Dept 1996], lv denied 88 NY2d 814 ; see Tatta v State of New York, 19 AD3d 817 [3d Dept 2005], lv denied 5 NY3d 712 ; Trottie v State of New York, 39 AD3d 1094 [3d Dept 2007]).
Claimant has not provided the affidavit of a medical expert in support of his allegations of medical negligence and/or malpractice nor has claimant even provided any medical or hospital records showing that claimant received negligent medical treatment or that claimant even suffered any injury at all.
In Matter of Robinson v State of New York (35 AD3d 948 [3d Dept 2006]), claimant alleged, among other things, that a surgical procedure performed by defendant had caused claimant to suffer a skin rash. In Robinson (35 AD3d at 950), the court stated, "[m]oreover, claimant provided no medical records or expert medical proof to support his allegations of medical malpractice . . . We, therefore, find no abuse of discretion in the denial of claimant's application to file a late notice of claim with respect to the January 2005 surgical procedure."
Claimant's proposed medical negligence and/or malpractice claim lacks the appearance of merit.
The allegations in the proposed claim of negligent hiring and supervision also lack the appearance of merit because neither the proposed claim nor the affirmation of claimant's attorney offer any factual allegations, beyond conclusory statements, of negligent hiring and supervision practices by defendant and because:
"These claims require allegations that the defendant knew or should have known of its employee's propensity to engage in the conduct that caused the plaintiff's injuries, and that the alleged negligent supervision or retention was a proximate cause of those injuries. The employee also must not be acting within the scope of his or her employment; in that situation the employer could only be liable, if at all, vicariously under the theory of respondeat superior, not for negligent supervision or retention." (Gray v Schenectady City Sch. Dist., 86 AD3d 771, 773-74 (3d Dept 2011]).
Neither the proposed claim nor the affirmation of claimant's attorney set forth any factual allegation that defendant knew or should have known of any purported violent propensities of the correction officers to support a negligent hiring and/or supervision cause of action. Further, the proposed claim specifically alleges that defendant's correction officers were acting "in the course of their duty(ies)" when they intentionally assaulted claimant. Any culpability of defendant would therefore be vicarious liability for the alleged intentional assault by the correction officers and, as set forth earlier, the intentional assault allegations (and any consequent respondeat superior liability) are barred by the applicable statute of limitations (see McCarthy v Mario Enterprises, Inc., 163 AD3d 1135, 1136 [3d Dept 2018]; CPLR 215).
The proposed claim's allegation that defendant negligently inflicted emotional distress upon claimant lacks the appearance of merit because the specific factual allegations of the proposed claim "are premised on intentional conduct and not negligence" (Santana v Leith, 117 AD3d 711, 712 [2d Dept 2014]; see James v Flynn, 132 AD3d 1214, 1216 [3d Dept 2015]: "allegations that defendant stalked her, entered her home, and threatened her with a weapon simply cannot support a cause of action for negligent infliction of emotional distress").
Claimant's state and federal constitutional tort allegations also lack the appearance of merit. Although the Court of Appeals has recognized a narrowly defined cause of action for a state constitutional tort in the Court of Claims (Brown v State of New York, 89 NY2d 172, 177-178 ), "no such claim will lie where the claimant has an adequate remedy in an alternate forum" (Shelton v New York State Liquor Authority, 61 AD3d 1145, 1150 [3d Dept 2009]; see Martinez v City of Schenectady, 97 NY2d 78, 83-84 ).
The law is clear that enforcement of claimant's state constitutional right to be free of unlawful imprisonment or solitary confinement may be pursued in the Supreme Court pursuant to CPLR Article 78 proceedings or through CPLR Article 70 habeas corpus proceedings. Claimant's state constitutional tort cause of action thus "does not lie" in the Court of Claims (Shelton, 61 AD3d at 1151).
With respect to the allegation that claimant's federal constitutional rights were violated, the law is settled that "claims for damages against the State based on alleged deprivations of rights under the US Constitution are beyond the jurisdiction of the Court of Claims" (Shelton, 61 AD3d at 1151; see Matter of Gable Transport, Inc. v State of New York, 29 AD3d 1125 [3d Dept 2006]; Welch v State of New York, 286 AD2d 496, 498 [2d Dept 2001]; Zagarella v State of New York, 149 AD2d 503 [2d Dept 1989]; Davis v State of New York, 124 AD2d 420, 423 [3d Dept 1986]).
Additionally, the Court lacks subject matter jurisdiction over the proposed claim's inmate grievance-related allegations. The subject matter jurisdiction of Court of Claims is invoked where money damages are the essential object of the claim, unlike an instance where the principal claim is equitable in nature (such as to review action or inaction by a state agency), with monetary relief being incidental to the principal claim (see Harvard Fin. Servs. v State of New York, 266 AD2d 685, 685 [3d Dept 1999]; Matter of Gross v Perales, 72 NY2d 231, 236 ).
In City of New York v State of New York (46 AD3d 1168, 1169-1170 [3d Dept 2007], lv denied 10 NY3d 705 ), the court explains that:
"Two inquiries must be made to determine if the Court of Claims has subject matter jurisdiction. As that court has 'no jurisdiction to grant strictly equitable relief' (Psaty v Duryea, 306 NY 413, 416 ), but may grant incidental equitable relief so long as the primary claim seeks to recover money damages in appropriation, contract or tort cases (see Ozanam Hall of Queens Nursing Home v State of New York, 241 AD2d 670, 671 ), 'the threshold question is "[w]hether the essential nature of the claim is to recover money, or whether the monetary relief is incidental to the primary claim"' (Madura v State of New York, 12 AD3d 759, 760 , lv denied 4 NY3d 704 , quoting Matter of Gross v Perales, 72 NY2d 231, 236 ). The second inquiry, regardless of how a claimant categorizes a claim, is whether the claim would require review of an administrative agency's determination--which the Court of Claims has no subject matter jurisdiction to entertain (see Hoffman v State of New York, 42 AD3d 641, 642 ), as review of such determinations are properly brought only in Supreme Court in a CPLR article 78 proceeding (see Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 757 )."
The claimant asks the Court of Claims to review grievance-based administrative actions of defendant where the essential object of the cause of action is equitable, rather than monetary, relief. The Court lacks subject matter jurisdiction over such a claim.
The assertion by claimant's attorney that the application to file a late claim should be granted because the defendant is engaged in "continuous harassment, assault, sexual assaults, battery, abuse, excessive force, cruel and unusual punishment" is unpersuasive. The proposed claim specifically alleges intentional assault and failure to provide medical treatment on February 1, 2017. If claimant is being continually assaulted and denied medical care, and continually unlawfully confined and denied state and federal civil rights, he may address these alleged acts and omissions through a properly drawn and properly served claim or late claim application, through CPLR Articles 70 or 78 proceedings or through federal court action.
The proposed claim lacks the appearance of merit. Recognizing that "it would be futile to permit a defective claim to be filed even if the other factors . . . supported the granting of the claimant's motion" (Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]), claimant's application to file a late claim is denied.
Balancing the factors set forth in Court of Claims Act 10 (6), the claimant's cross-motion for permission to file a late claim is denied.
September 25, 2018
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
1. Notice of Motion for Dismissal, filed February 28, 2018;
2. Affirmation of Glenn C. King, dated February 23, 2018, and annexed exhibits;
3. Opposition to Respondent's Motion to Dismiss and Claimant's Notice of Cross-Motion, filed July 3, 2018;
4. Affirmation of Ellie Silverman, dated June 26, 2018, and annexed exhibits;
5. Affirmation of Glenn C. King, dated July 3, 2018, in Reply and in Opposition to Cross-Motion;
6. Reply Affirmation of Ellie Silverman, dated July 24, 2018.