New York State Court of Claims

New York State Court of Claims
PHELPS v. THE STATE OF NEW YORK, # 2018-054-096, Claim No. 130992, Motion No. M-92554, Cross-Motion No. CM-92657

Synopsis

Claim dismissed, not timely served within 90 days of accrual of the claim, amended claim cannot cure the jurisdictional defect of the initial claim.

Case information

UID: 2018-054-096
Claimant(s): CHASMAN L. PHELPS
Claimant short name: PHELPS
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 130992
Motion number(s): M-92554
Cross-motion number(s): CM-92657
Judge: WALTER RIVERA
Claimant's attorney: CHASMAN L. PHELPS
Pro Se
Defendant's attorney: HON. BARBARA D. UNDERWOOD
Attorney General for the State of New York
By: Anthony Rotondi, Assistant Attorney General
Third-party defendant's attorney:
Signature date: September 24, 2018
City: White Plains
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

The following papers numbered 1-3 were read and considered by the Court on claimant's motion to dismiss the affirmative defenses asserted in defendant's answer and defendant's cross-motion to dismiss the claim:

Notice of Motion, Claimant's Supporting Affidavit and Exhibits............................1

Notice of Cross-Motion, Attorney's Supporting Affirmation and Exhibits..............2

Claimant's Opposition to Cross-Motion...................................................................3

Claim No. 130992 alleges that on May 12, 2017, during claimant's incarceration at Greene Correctional Facility, he was assaulted by another inmate who cut claimant on the face while he slept. Claimant contends that the assault occurred due to the negligent supervision of the correction officer on duty.

On July 10, 2017, claimant served defendant with a Notice of Intention to File a Claim by regular mail (Defendant's Ex. A). On February 14, 2018, claimant served a copy of the claim upon defendant by regular mail (Defendant's Ex. B). On March 26, 2018, defendant served an answer upon claimant setting forth with sufficient particularity the affirmative defenses of lack of jurisdiction based upon claimant's improper service of the Notice of Intention to File a Claim and a copy of the claim by regular mail (Defendant's Ex. C, 8, 12). On April 16, 2018, claimant served an amended Notice of Intention to File a Claim (Defendant's Ex. D) and an amended claim on April 27, 2018 (Defendant's Ex. E), by certified mail, return receipt requested. On June 6, 2018, defendant served an answer to the amended claim asserting with sufficient particularity the affirmative defense of lack of jurisdiction based upon a defective Notice of Intention to File a Claim served by regular mail; an untimely Notice of Intention to File a Claim and an untimely amended claim (Defendant's Ex. F, 7, 9, 10).

Claimant moves to dismiss defendant's affirmative defenses raised in its answer. Notably, defendant raised several affirmative defenses of lack of jurisdiction based upon improper and untimely service (Answer 1st, 3rd, 4th and 5th affirmative defenses). Defendant cross-moves to dismiss the claim pursuant to CPLR 3211 (a) (2).

The Court DENIES claimant's motion as moot in light of this Court's ruling on defendant's cross-motion to dismiss the claim on jurisdictional grounds, as set forth below.

Claimant's Notice of Intention to File a Claim served by regular mail on July 10, 2017 was a nullity because service by regular mail is not an authorized manner of service (Court of Claims Act 10, 11; see Brown v State of New York, 114 AD3d 632 [2d Dept 2014]). The copy of the claim served upon defendant by regular mail on February 14, 2018 was also jurisdictionally defective because it was not timely served within 90 days after the accrual of the claim and it was not served by an authorized manner of service (id.).

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 [1992]). 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 [2007] ["(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]).

Claimant's service of an amended Notice of Intention to File a Claim served by certified mail, return receipt requested, on April 16, 2018, was also a nullity because it was not timely served within 90 days after the accrual of the claim. Additionally, there is no provision in the Court of Claims Act for serving an amended Notice of Intention to File a Claim and an amendment cannot cure the jurisdictional defect of improper service of the initial Notice of Intention to File a Claim (see Langer v State of New York, 65 AD3d 780 [3d Dept 2009]; Hogan v State of New York, 59 AD3d 754, 755 [3d Dept 2009]; Court of Claims Act 10, 11). The amended claim served by certified mail, return receipt requested on April 27, 2018, was also jurisdictionally defective because it was untimely. In this respect, there was no proper Notice of Intention to File a Claim to extend the time within which to serve the claim and an amended claim cannot cure the jurisdictional defect of the initial claim, which was also untimely (Hogan, 59 AD3d at 755).

Accordingly, the State's cross-motion to dismiss Claim No. 130992 is GRANTED and, as previously noted, claimant's motion to dismiss defendant's affirmative defenses is DENIED as moot.

September 24, 2018

White Plains, New York

WALTER RIVERA

Judge of the Court of Claims