defendant's motion to dismiss granted-untimely filed and served and claimant's late claim application denied.-statute of limitations lapsed.
|Claimant(s):||DOUTHAISO LE GRAND|
|Claimant short name:||LEGRAND|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK, DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION|
|Footnote (defendant name) :|
|Claimant's attorney:||DOUTHAISO LE GRAND
|Defendant's attorney:||HON. BARBARA D. UNDERWOOD
Attorney General for the State of New York
By: Thomas R. Monjeau, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||June 21, 2018|
|See also (multicaptioned case)|
The following papers numbered 1-3 were read and considered by the Court on defendant's motion to dismiss and claimant's cross-motion for late claim relief:
Notice of Motion, Attorney's Supporting Affirmation and Exhibits........................1
Notice of Cross-Motion, Claimant's Supporting Affidavit and Exhibits.................2
Attorney's Affirmation in Further Support...............................................................3
On May 4, 2015, claimant served defendant with a notice of intention to file a claim alleging that "[o]n February 2, 2015, claimant suffered a broken arm due to the deliberate indifference to claimant's medical needs and negligence on the part of medical staff at Eastern NY Correctional Facility" (Ex. A). Service of the notice of intention to file a claim was untimely as it was not made within 90 days after the accrual of the claim (Court of Claims Act § 10 ). Accordingly, the notice of intention to file a claim was a nullity and therefore did not extend the time for claimant to serve and file a claim. Thus, the claim served upon defendant on October 8, 2015 and filed with the Court of October 15, 2015 was untimely served and filed.
The service requirements set forth in Court of Claims Act §§ 10 and 11 are jurisdictional in nature and require strict compliance as a precondition of suit against the State (see Dreger v New York State Thruway Auth., 81 NY2d 721, 724 ). A failure to comply with any of the service provisions set forth in Court of Claims Act §§ 10 and 11 is a jurisdictional defect compelling the dismissal of the claim (see Kolnacki v State of New York, 8 NY3d 277, 281  ["(t)he failure to satisfy any of the (statutory) conditions is a jurisdictional defect"]; Welch v State of New York, 286 AD2d 496, 497-98 [2d Dept 2001]).
Accordingly, the defendant's motion to dismiss Claim No. 126879 is hereby GRANTED.
Claimant cross-moves for late claim relief. Since claimant has failed to include a proposed claim with his cross-motion, his application is DENIED.
Moreover, even if the Court were to consider Claim No. 126879 as a proposed claim, the application would be dismissed because it is untimely (Court of Claims Act § 10 ). Claimant alleges that he presented to the medical department at Eastern NY Correctional Facility on 32 occasions beginning on March 3, 2014 "to report specific medical complaints leading to the injury" claimant sustained on February 2, 2015 (Claim, ¶¶ 3-4). On that date, claimant collapsed and injured his left wrist and thumb, necessitating surgery which was performed on June 12, 2015. Claimant also contends that he sustained permanent damage to his left knee.
Court of Claims Act § 10 (6) provides that a late claim application must be brought "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 [emphasis added]." The failure to bring a late claim application before the expiration of the relevant statute of limitations would preclude the Court from considering the application because the failure to file a late claim application within the proscribed time period is a jurisdictional defect and the Court is without discretionary power to grant nunc pro tunc relief (see Matter of Miller v State of New York, 283 AD2d 830 [3d Dept 2001]; Bergmann v State of New York, 281 AD2d 731, 733 [3d Dept 2001]).
The statute of limitations on the causes of action asserted by claimant, whether characterized as medical malpractice or negligence, have lapsed before claimant brought his cross-motion for leave to serve and file a late claim (CPLR §§ 214, 214-a). Thus, the Court is without jurisdiction to hear claimant's cross-motion for late claim relief.
June 21, 2018
White Plains, New York
Judge of the Court of Claims