Motion to dismiss
|Claimant(s):||MICHAEL J. WANG, M.D.|
|Claimant short name:||WANG|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Claim number(s):||130737, 130813|
|Motion number(s):||M-91979, M-92387, M-92047, M-92048|
|Judge:||GINA M. LOPEZ-SUMMA|
|Claimant's attorney:||Michael J. Wang, Pro Se|
|Defendant's attorney:||Hon. Barbara D. Underwood, Attorney General
By: Susan M. Connolly, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||October 5, 2018|
|See also (multicaptioned case)|
The following papers were read and considered by the Court on these motions: Defendant's Notice of Motion to Dismiss Claim 130737 filed March 19, 2018, Defendant's Affirmation in Support with annexed Exhibits A-E, Claimant's Opposition filed March 22, 2018 with annexed Exhibits A-E, Defendant's Reply Affirmation filed April 11, 2018 with annexed Exhibit A, Defendant's Notice of Motion to Dismiss Claim 130813 filed March 26, 2018, Defendant's Affirmation in Support with annexed Exhibits A-E, Claimant's Notice of Motion for a Settlement Conference filed March 26, 2018, Claimant's Affirmation in Support of a Settlement Conference with annexed Exhibits A-E, Notice of Motion for a Settlement Conference filed June 11, 2018, Claimant's Affirmation in Support of a Settlement Conference with annexed Exhibits A-E, Claimant's Reply Affirmation filed June 22, 2018.
Defendant, the State of New York, has brought motions M-91979 and M-92047 pursuant to CPLR 3211 (4), (5), (8) and (9) seeking orders dismissing claims 130737 and 130813. Claimant, Michael J. Wang, a pro se litigant, has opposed the motions and filed two separate motions, M-92387 and M-92048, seeking settlement conferences.
Claimant filed and served claim 130737 on December 19, 2017. The claim apparently concerns false statements made by two assistant attorneys general while defending cases brought by claimant in Federal and New York State Supreme Court. It is not clear from a plain reading of the claim when the alleged false statements took place. The latest Court date set forth in the claim was "September 2007."
A duplicate claim(1) was filed with the Court on January 10, 2018 and served on defendant on January 23, 2018.
Defendant initially seeks dismissal of the claim by arguing that both claims were improperly served by regular mail as opposed to either personal service or certified mail, return receipt requested. Claimant's affidavit of service attached to claim 130737 is unsworn and merely indicates that the claim was served by mail. There is no affidavit of service attached to claim 130813 in defendant's motion. An unsworn affidavit of service is attached to the filed claim which indicates that the claim was served by certified mail return receipt requested on January 8, 2018. However, the unsworn affidavit of service does not indicate where the claim was served.
Court of Claims Act § 11 (a) provides that 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 . . . ." The filing and service requirements contained in the Court of Claims Act § 11 are jurisdictional in nature and therefore must be strictly construed (Finnerty v New York State Thruway Authority, 75 NY2d 721 ). In this case, the requirement that defendant be served in accordance with Court of Claims Act § 11 was not met as claim 130737 was served by ordinary mail. As "the use of ordinary mail to serve the claim upon the Attorney-General is insufficient to acquire jurisdiction over the State" (Turley v State of New York, 279 AD2d 819 [3d Dept 2001]), the Court is deprived of jurisdiction.
Claimant submitted a new affidavit of service which states that claim 130737 and motion papers were served upon the Office of the Attorney General on March 20, 2018 by certified mail, return receipt requested.
Notwithstanding the aforementioned infirmities, the claims were not filed or served within the applicable time requirements set forth in Court of Claims § 10 which require that a claim must be filed and served upon the Office of the Attorney General within ninety days after the accrual of such claim unless the claimant shall within such time serve a notice of intention to file a claim upon the Office of the Attorney General. As previously stated the latest accrual date set forth in both claims was September 2007.
The Court of Appeals has long held that "[b]ecause suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed" (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 ). Claimant's failure to file and serve the claims within the time requirements set forth in Court of Claims § 10 deprives the Court of jurisdiction over the claims (Lepkowski v State of New York, 1 NY3d 201 ; Butler v State of New York, 126 AD3d 1247 [3d Dept 2015]; Weaver v State of New York, 82 AD3d 878 [2d Dept 2011]). Additionally any claim which may have accrued in September 2007 would be well outside the applicable statute of limitations period set forth in Article two of the CPLR.
To the extent claimant is attempting to put forth allegations without stating an accrual date, such claims are in violation of Court of Claims Act § 11 (b) which requires in pertinent part that "[t]he claim shall state the time when and the place where such claim arose." The requirements of Court of Claims Act § 11 (b) are jurisdictional in nature and must be strictly complied with in order to properly initiate an action against defendant (Kolnacki v State of New York, 8 NY3d 277 ; "The Court of Claims Act does not require [defendant] to ferret out or assemble information that section 11 (b) obligates the claimant to allege" (Lepkowski v State of New York, 1 NY3d 201, 208 ). Accordingly, those claims must be dismissed on this ground (Prisco v State of New York, 62 AD3d 978 [2d Dept 2009]).
Claimant fails to also state a viable cause of action in his claims. The State is entitled to absolute immunity for statements made by an assistant attorney general during the course of a judicial proceeding (Imbler v Pachtman, 424 US 409 ; Levy v State of New York, 58 NY2d 733 ; Sassower v Signorelli, 99 AD2d 358 [2d Dept 1984]). Additionally, the United States Court of Appeals in Wang v Logue, 351 Fed Appx 510 [2d Circ 2009], affirmed the District Court's ruling that the Assistant Attorney General in this case is absolutely immune from suit for the statements made in court during her representation of the State.
Lastly, to the extent claimant is seeking disciplinary action against the Assistant Attorneys General such claims are outside the jurisdiction of the Court of Claims (see Court of Claims Act § 9). Similarly, to the extent claimant raises federal statutory and federal constitutional violations in his reply papers those claims are beyond the jurisdiction of the Court of Claims.Therefore, for the foregoing reasons, defendant's motions, M-91979 and M-92047, to dismiss claims 130737 and 130813 are granted. Accordingly, claimant's motions M-92048 and M-92387 are denied as moot.
October 5, 2018
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims
1. The claims were identical except that claim 130737 was single spaced while claim 130813 was double spaced.