New York State Court of Claims

New York State Court of Claims
NIEVES v. STATE OF NEW YORK, # 2018-053-509, Claim No. 125175, Motion No. M-90723

Synopsis

The State's motion for summary judgment is granted. Pro se claimant failed to serve notice of intention or claim in compliance with Court of Claims Act 11 (c). Claimant's motion for permission to late file a claim was unrelated to this claim as it involved an assault in 2014 and not issues of medical treatment in 2013 as alleged in this claim.

Case information

UID: 2018-053-509
Claimant(s): BRANDON NIEVES
Claimant short name: NIEVES
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 125175
Motion number(s): M-90723
Cross-motion number(s):
Judge: J. DAVID SAMPSON
Claimant's attorney: BRANDON NIEVES, Pro Se
Defendant's attorney: HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
BY: Timothy J. Flynn, Esq.
Assistant Attorney General
Third-party defendant's attorney:
Signature date: January 25, 2018
City: Buffalo
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant Brandon Nieves, a former inmate proceeding pro se, alleges in claim no. 125175 that he was assaulted on April 14, 2014 by correction officers while incarcerated at Gowanda Correctional Facility (Gowanda) and was thereafter denied medical care while confined in Gowanda's special housing unit (SHU). Defendant moves for summary judgment dismissing the claim for lack of jurisdiction. Claimant opposes the motion.

Court of Claims Act 10 (3), 10 (3-b) and 11(a) (1) (i), provide that a claim for personal injuries caused by the negligence of or by an intentional act of an officer or employee of the State of New York must be filed and a copy served upon the Attorney General personally or by certified mail, return receipt requested, within ninety (90) days of accrual of the claim, unless the claimant shall within the same ninety (90) day period serve upon the Attorney General a notice of intention to file a claim, in which event a claim based on a negligent act shall be filed and served within two years after accrual of the claim and a claim based on an intentional act shall be filed and served within one year after accrual of the claim. The filing and service requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]). The failure to timely and properly serve a notice of intention or a claim within the requisite ninety (90) day period divests the Court of jurisdiction, requiring dismissal of the claim (Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]; Bogel v State of New York, 175 AD2d 493 [3d Dept 1991]). Defendant alleges that neither a notice of intention nor the claim was properly served within the requisite ninety (90) day period and raised these objections with particularity as affirmative defenses in its answer in compliance with Court of Claims Act 11 (c).

Using April 14, 2014 as the accrual date, claimant had ninety (90) days or until July 14, 2014 within which to file and serve a notice of intention to file a claim or a claim. On May 14, 2014, within ninety (90) days of accrual of the claim, claimant served a notice of intention upon the Attorney General's Office (exhibit A to the July 7, 2017 affidavit of Assistant Attorney General Timothy J. Flynn). In his notice of intention, claimant alleged that he was injured "due to the assault and battery by staff" at Gowanda on April 14, 2014. In addition, claimant alleged "medical negeglent that participated afterwards [sic]." While this notice of intention was served within ninety (90) days of accrual of the claim, it was improperly served by regular mail. Attached as part of defendant's exhibit A is a copy of the envelope in which the notice of intention was served. This envelope shows postage of $0.48, an amount insufficient for certified mail, return receipt requested. In addition, there is no certified mail or return receipt sticker on the envelope to indicate proper service by certified mail, return receipt requested. Regular mail is not an authorized method of service. Accordingly, the notice of intention was a nullity and did not extend claimant's time within which to serve a claim (see Miranda v State of New York, 113 AD3d 943 [3d Dept 2014]).

On September 24, 2014, claimant served the claim upon the Attorney General's Office by regular mail (exhibit B to the July 7, 2017 affidavit of Assistant Attorney General Flynn). As a result, claimant's service of the claim was untimely as it was served more than ninety (90) days after the claim accrued, and service was improper as the claim was served by regular mail. Attached as part of defendant's exhibit B is a copy of the envelope in which the claim was served. The envelope is marked "Legal Mail," but there is no certified mail or return receipt sticker on the envelope to indicate proper service by certified mail, return receipt requested. Insofar as the claim was improperly served by regular mail and served beyond the requisite ninety (90) day time period, the claim is jurisdictionally defective and must be dismissed (Zoeckler v State of New York, 109 AD3d 1133 [4th Dept 2013]; Ivy v State of New York, supra; Fulton v State of New York, 35 AD3d 977 [3d Dept 2006]).

In opposition to defendant's motion, claimant relies on two almost identical statements dated July 12, 2017 and November 15, 2017. While claimant refers to both statements as affidavits, neither is signed nor is either statement notarized. The statement dated July 12, 2017 was apparently served upon the defendant as Assistant Attorney General Flynn's November 9, 2017 supplemental affidavit refers to claimant's "affidavit" dated July 12, 2017 (see 5 of Assistant Attorney General Flynn's November 9, 2017 supplemental affidavit). A copy of a statement dated July 12, 2017, with attachments, was mailed to Chambers, but never filed with the Clerk of the Court of Claims. On December 1, 2017, claimant filed with the Court an unsigned statement dated November 15, 2017. This statement was neither signed nor notarized, nor accompanied by any exhibits, although exhibits are referred to therein. It is not known if this second unsigned and unsworn statement was served upon the Attorney General, although an affidavit of service indicating service upon the Attorney General is attached to the second statement as filed. Paragraphs 1 and 2 of each statement are identical. The remaining paragraphs start with the same language, but the November 15, 2017 statement includes additional sentences that reference defendant's supplemental affidavit. Insofar as neither statement is signed nor notarized, this Court need not consider them. However, were this Court to consider either statement, nothing alleged or stated in either is sufficient to overcome the jurisdictional defects presented herein.

In paragraph 5 of each statement, claimant indicates that he served the Attorney General on July 28, 2014, by certified mail, return receipt requested, with a motion for permission to late file a claim. Attached to Assistant Attorney General Flynn's November 9, 2017 supplemental affidavit as exhibit A is a copy of a motion for late claim relief. As noted by Attorney Flynn in his supplemental affidavit, claimant failed to establish that this motion was ever filed with the Clerk of the Court or that a decision granting the requested relief was ever issued. In addition, defendant correctly noted that had this motion been filed, it would have been denied as the proposed claim which must accompany a motion to late file a claim was not included with the motion papers served upon the Attorney General (see 6-10 of Attorney Flynn's November 9, 2017 supplemental affidavit; Court of Claims Act 10 [6]).

Upon review of Attorney Flynn's supplemental affidavit, this court contacted the Chief Clerk's office and was advised that the claimant filed only one motion for permission to late file a claim in 2014. That motion was filed by the claimant in January of 2014 and involved issues of medical treatment which occurred in August and September of 2013 while claimant was incarcerated at Upstate Correctional Facility (Upstate). The present claim involves an assault which occurred approximately seven months later at Gowanda. Thus, the only motion for late claim relief filed by the claimant in 2014 was unrelated to the present claim. Moreover, the Hon. W. Brooks DeBow denied claimant permission to late file the unrelated claim which was the subject of claimant's January of 2014 motion to late file (see Nieves v State of New York, UID No. 2014-038-517 [Ct Cl, DeBow, J., April 30, 2014]).

In addition, paragraphs 5 of claimant's statements can both be read as alleging that a claim was properly served upon the Attorney General on July 28, 2014 by certified mail, return receipt requested, together with the motion for permission to late file a claim. Among the documents attached to the claim as filed is a copy of a return receipt sticker indicating that something was served upon the Attorney General on July 28, 2014, by certified mail, return receipt requested. Defendant admits that it was served with a motion, but indicates that the motion was not accompanied by a proposed claim (see 7 of Attorney Flynn's November 9, 2017 supplemental affidavit). As a result, even if service of the claim had been properly served on July 28, 2014, and there is no proof that it was, any such alleged service would have been untimely as being beyond the ninety (90) day statutory period. Moreover, the claim was not filed until October 28, 2014, well beyond the statutory period.

Finally, claimant alleges in paragraphs 6 of both of his statements that a notice to amend "fit for trial jurisdiction" was filed on October 16, 2015. Claimant's notice to amend was filed by the clerk's office as a supplemental pleading (see exhibits B and C to Attorney Flynn's November 9, 2017 supplemental affidavit). In its answer to claimant's notice to amend, defendant again raised the jurisdictional deficiencies caused by the improper service of the notice of intention and the improper and untimely service of the claim (see exhibit D attached to Attorney Flynn's November 9, 2017 supplemental affidavit). Further, it is unclear from the claimant's statements what he means when he says that the notice to amend is "fit for trial jurisdiction." Regardless, it has been held that "a jurisdictionally defective claim cannot be cured through an amendment" (Hogan v State of New York, 59 AD3d 754, 755 [3d Dept 2009]).

Based on the foregoing, defendant's motion no. M-90723 is granted and claim no. 125175 is dismissed.

January 25, 2018

Buffalo, New York

J. DAVID SAMPSON

Judge of the Court of Claims

The following were read by the Court:

1. Notice of motion and affidavit of Assistant Attorney General Timothy J. Flynn sworn to July 7, 2017, with annexed exhibits A-C;

2. Claimant's unsworn statement in support of claimant's answer to defendant's motion dated July 12, 2017, with annexed exhibits;(1)

3. Supplemental affidavit of Assistant Attorney General Timothy J. Flynn sworn to November 9, 2017, with annexed exhibits A-D; and

4. Claimant's unsworn statement in support of claimant's answer to defendant's supplemental affidavit dated November 15, 2017.(2)


1. It is unknown whether or not the exhibits attached to the copy of claimant's July 12, 2017 statement as sent to Chambers were attached to the copy of this statement served upon the defendant. This statement was never filed with the Clerk of the Court of Claims.

2. While claimant's November 15, 2017 statement was filed with the Clerk of the Court of Claims, it is not known if this statement was served upon the defendant.