Pro se inmate's claim alleging the loss of certain personal property was dismissed for improper service and, with respect to the second and third claims that were properly served, untimely service. Defendant's answer to the same claim served multiple times was treated as an amended answer served without leave but it was not a nullity because claimant failed to reject it or otherwise establish prejudice.
|Claimant(s):||AARON ISAIAH YOUNG, 02A5534|
|Claimant short name:||YOUNG|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Aaron Isaiah Young, Pro Se|
|Defendant's attorney:||Honorable Letitia James, Attorney General
By: Christina Calabrese, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||April 24, 2019|
|See also (multicaptioned case)|
Defendant moves to dismiss the claim pursuant to CPLR 3211 (a) (2) and (8) on the grounds this Court lacks personal jurisdiction over the defendant and subject matter jurisdiction over the claim. Claimant, an inmate in the custody of the Department of Corrections and Community Supervision (DOCCS), seeks damages for the loss of certain personal property entrusted to prison staff at Great Meadow Correctional Facility but not returned.
Following an incident on February 5, 2015, claimant was allegedly taken to the facility hospital and, thereafter, to the Special Housing Unit on February 6, 2015. Claimant alleges he discovered certain of his personal property missing from his belongings on February 9, 2015, and that he filed an administrative claim that same day (claim, ¶ 2; see also defendant's Exhibit B, Inmate Claim Form attached to the claim). The administrative claim was initially denied on March 4, 2015 and claimant's administrative appeal of the denial was "disapproved" on March 9, 2015 (see defendant's Exhibit B, claim, ¶ 2; see also claim filed in the Office of the Clerk of the Court of Claims, reverse side of the Inmate Claim Form attached thereto). According to claimant's affidavit of service filed with the claim, the claim and a notice of intention to file a claim were served on March 31, 2015 "by regular first class mail/certified return receipt mail/other."
Defendant served an answer to the claim on July 17, 2015 in which it raised as an affirmative defense that "the claim was not served in compliance with Section 11(a) of the Court of Claims Act in that the claim was delivered by ordinary mail instead of served personally or by certified mail, return receipt requested" (defendant's Exhibit C, Sixth Defense). The answer also raised as a twelfth affirmative defense that claimant failed to "file and serve the claim within one hundred twenty days after the date on which he exhausted his administrative remedies," citing Court of Claims Act § 10(9).(1) Thereafter, claimant twice re-served the claim by certified mail, return receipt requested. The first certified mailing was received in the Office of the Attorney General on August 4, 2015 (defendant's Exhibit D) and the second was received on August 19, 2015 (defendant's Exhibit E).(2) Defendant served another answer to the claim entitled "Verified Answer To The First and Second Claim" on September 4, 2015 (defendant's Exhibit F). This second answer separately delineated the affirmative defenses applicable to the "First Claim," including the defenses of improper service of the claim and that the claim was untimely filed and served (defendant's Exhibit F, Sixth and Twelfth defenses). In addition, defendant's second answer raised as defenses to the "Second Claim" that claimant failed to "file and serve the claim within one hundred twenty days after the date on which he exhausted his administrative remedies," citing Court of Claims Act § 10 (9).
In support of its dismissal motion, defendant contends that the claim was initially served improperly by regular First Class mail (received on June 26, 2015) and that the claims served on August 4, 2015 and August 19, 2015 were untimely.
Defendant's service of two answers to the same claim served three times requires some consideration. While a defendant is required to serve an answer to a claim or amended claim (22 NYCRR 206.7 [a]; CPLR 3025 [d] ["there shall be an answer or reply to an amended or supplemental pleading if an answer or reply is required to the pleading being amended or supplemented"]), it is not required to serve an answer to identical claims served multiple times (cf. R&G Brenner Income Tax Consultants v Gilmartin, 166 AD3d 685, 688 [2d Dept 2018] [since an amended complaint supplants the original complaint, it should ordinarily be followed by an answer]). The effect of defendant doing so here renders the answer served in response to the subsequently served claims an amended answer thereby supplanting defendant's initial answer to the claim (id.). As pertinent here, the Uniform Rules for the New York State Court of Claims permit a party to amend pleadings in the manner provided by CPLR 3025 "except that a party may amend a pleading once without leave of court within 40 days after its service" (22 NYCRR 206.7 [b]). Inasmuch as defendant's initial answer was served on July 17, 2015, defendant's service of its subsequent answer on September 4, 2015 was not a timely amendment as of right. Defendant was therefore required to obtain leave of Court to amend its answer to the claim, which it failed to do.
There is a divergence of opinion in the appellate division departments regarding how an amended pleading served without leave may be treated. Whereas the Appellate Division, First Department, holds that an amended pleading served without the requisite leave is a nullity (Fall v Diallo, 147 AD3d 641 [1st Dept 2017]; Khedouri v Equinox, 73 AD3d 532, 533 [1st Dept 2010]; Walden v Nowinski, 63 AD2d 586 [1st Dept 1978]), the Second and Third Departments hold that by retaining the amended pleading without objection, the adverse party has waived his or her right to dispute its propriety (Moran v Hurst, 32 AD3d 909, 910 [2d Dept 2006]; Golub v Ganz, 22 AD3d 919, n 2 [3d Dept 2005]; Jordan v Aviles, 289 AD2d 532, 533 [2d Dept 2001]; Rebh v Rotterdam Ventures, 252 AD2d 609, 611-612 [3d Dept 1998]; Dime Sav. Bank of N.Y., FSB v Halo, 210 AD2d 572, 573 [3d Dept 1994]; Chiulli v Coyne, 210 AD2d 450 [2d Dept 1994]; Nassau County v Incorporated Vil. of Roslyn, 182 AD2d 678 [2d Dept 1992], lv dismissed 80 NY2d 972 ; State Univ. Constr. Fund v Aetna Cas. & Sur. Co., 169 AD2d 52, 54 [3d Dept 1991]; County of Nassau v Cedric Constr. Corp., 100 AD2d 890 [2d Dept 1984]; Lampman v Cairo Cent. School Dist., 47 AD2d 794, 795 [3d Dept 1975]).(3) Here, it does not appear from the motion record that defendant's amended answer was rejected or returned, and no argument was raised in opposition to the motion indicating the claimant would be prejudiced by the amendment of defendant's answer. Governed by the controlling precedent in the Third Department (see Phelps v Phelps, 128 AD3d 1545, 1547 [4th Dept 2015]; Mountain View Coach Lines v Storms, 102 AD2d 663 [2d Dept 1984]; Court of Claims Act § 24 [appeals from an Order or Judgment of the Court of Claims are taken "to the appellate division of the supreme court of the department in which the claims relating to the orders or judgments appealed, arose"]), the Court finds that claimant waived his right to dispute the propriety of defendant's amended answer. Inasmuch as defendant raised its objection to the manner of service and the timeliness of the claim in its amended answer, the Court will address the merit of these arguments seriatim.(4)
Court of Claims Act § 11 (a) (i) requires that a claim be filed with the Clerk of the Court and that "a copy shall be served personally or by certified mail, return receipt requested, upon the attorney general." Inasmuch as the filing and service requirements of Court of Claims Act §§ 10 and 11 are jurisdictional in nature, they must be strictly construed (Lurie v State of New York, 73 AD2d 1006, 1007 [3d Dept 1980], affd 52 NY2d 849 ; see also Dreger v New York State Thruway Auth., 81 NY2d 721, 724 ). Absent waiver of the defense of improper service of the claim (Court of Claims Act § 11 [c]), service of the claim by ordinary mail is insufficient to acquire jurisdiction over the defendant (Costello v State of New York, 164 AD3d 1420 [2d Dept 2018]; Encarnacion v State of New York, 133 AD3d 1049 [3d Dept 2015], lv denied 26 NY3d 919 ; Brown v State of New York, 114 AD3d 632 [2d Dept 2014]; Fulton v State of New York, 35 AD3d 977 [3d Dept 2006], lv denied 8 NY3d 809 ; Govan v State of New York, 301 AD2d 757 [3d Dept 2003], lv denied 99 NY2d 510 ). With respect to the initial claim received in the Office of the Attorney General on June 26, 2015, defendant established through submission of a copy of the envelope in which the claim was mailed that the claim was improperly served by ordinary mail rather than one of the methods prescribed by Court of Claims Act § 11 (a) (i). Notably, the affidavit of service of the claim filed in the Office of the Clerk of the Court of Claims fails to indicate how the claim was served.
While the claim was properly served by certified mail, return receipt requested, on August 4, 2015 and August 19, 2015, Court of Claims Act § 10 (9) requires that a claim for the loss of personal property be filed and served "within one hundred twenty days after the date on which the inmate has exhausted" his or her administrative remedies. "For accrual purposes, a claimant is deemed to have exhausted all of his or her administrative remedies on the date on which he or she received notice of the final administrative determination" (Scott v State of New York, 137 AD3d 1434 [3d Dept 2016], lv denied 27 NY3d 911 ; Blanche v State of New York, 17 AD3d 1069 [4th Dept 2005]). In reaching this conclusion in Blanche, the Court considered the analogous four-month statute of limitations applicable to special proceedings, which does not begin to run until the determination to be reviewed is received by the petitioner, and the absence of discretionary authority under Court of Claims Act § 10 (6) to grant late claim relief for claims arising under § 10 (9). Accordingly, the burden is on the movant in such circumstances to establish the date the claimant received the administrative appeal determination. Inasmuch as defendant supports its motion with a copy of the claim and its attachments, including a letter from the claimant dated March 13, 2015 admitting his prior receipt of the March 9, 2015 administrative appeal determination, defendant sufficiently established that the claim accrued no later than March 13, 2015. Accordingly, service of the claim on August 4, 2015 and August 19, 2015 was untimely (defendant's Exhibit B, letter from claimant dated March 13, 2015).
Although claimant served a notice of intention to file a claim, there is no provision in Court of Claims Act § 10 (9) for the service of a notice of intention to file a claim as a means of extending the time within which such a claim may be served and filed (Spaight v State of New York, 91 AD3d 995 [3d Dept 2012]; Bush v State of New York, 60 AD3d 1244 [3d Dept 2009]; Pristell v State of New York, 40 AD3d 1198 [3d Dept 2007]; Roberts v State of New York, 11 AD3d 1000 [4th Dept 2004]). Thus, claimant's service of a Notice of Intention to File a Claim did not extend his time to serve and file his claim.
Based on the foregoing, defendant's dismissal motion is granted and the claim is dismissed.
April 24, 2019
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
1. In its ninth affirmative defense, defendant alleged, once again, that the claim "was not filed with the Clerk of the Court of Claims within one hundred twenty (120) days after the date on which claimant exhausted his/her administrative remedies as required by Court of Claims Act Section 10(9)" (defendant's Exhibit C, Ninth Defense).
2. The claim served on August 4, 2015 was identical to the filed claim which was initially served by first class mail (compare defendant's Exhibits B and D). The claim served on August 19, 2015 contained minor variations from the previously served claims. Although the date stamp of the Attorney General's Office is not legible on the claim it received on August 19, 2015, for the purposes of this motion the Court accepts defense counsel's representation that it was received in her office on August 19, 2015.
3. It is settled that failure to obtain leave of court to amend a complaint to add a new party constitutes a jurisdictional defect requiring dismissal of the action against the newly added parties in the absence of a waiver (Crook v E.I. du Pont de Nemours Co., 181 AD2d 1039, 1040 [4th Dept 1992], affd for the reasons stated below 81 NY2d 807 ; Jaramillo v Asconcio, 151 AD3d 947 [2d Dept 2017]; Yadegar v International Food Mkt., 306 AD2d 526 [2d Dept 2003]; Dauernheim v Lendlease Cars, 202 AD2d 624 [2d Dept 1994]; Mekkelson v Cleverley Eng'g, 179 AD2d 1056 [4th Dept 1992]).
4. Since defendant's first and second answers both included defenses objecting to the manner of service as well as the timeliness of the claim, the Court need not decide the difficult issue of whether the defendant waived either of these defenses by failing to include them in its initial answer (see Court of Claims Act § 11 [c]; compare Adebambo v State of New York, 181 Misc 2d 181 [Ct Cl, 1999] and Knight v State of New York, 177 Misc 2d 181 [Ct Cl, 1998] with Harris v State of New York, 190 Misc 2d 463 [Ct Cl, 2002] and Lawyer v State of New York, Ct Cl, Sept. 6, 2005, Schweitzer, J., claim No. 109555, UID No. 2005-036-101; see generally Iacovangelo v Shepherd, 5 NY3d 184  [lack of personal jurisdiction may be included in an answer amended as of right]; Moezinia v Ashkenazi, 136 AD3d 990 [2d Dept 2016] [same]; Mendrzycki v Cricchio, 58 AD3d 171 [2d Dept 2008] [can assert the statute of limitations as a defense in an answer to an amended complaint]; Curry v D'Onofrio, 29 AD3d 727 [2d Dept 2006] [can assert statute of limitations as a defense in an amended answer served as of right]; Boulay v Olympic Flame, 165 AD2d 191 [3d Dept 1991] [lack of personal jurisdiction could not be added as a defense in an amended answer which was not served within the time to do so as of right since it did not relate back to the original answer in the same way an answer as of right would]).