Defendant's motion to dismiss the claim granted. Notice of intention was served more than 90 days after accrual, and thus the subsequently filed and served claim was jurisdictionally defective due to untimeliness. The lack of timeliness could not be cured by an amended claim, nor can a jurisdictional defect be excused.
|Claimant(s):||SYDNEY WISDOM, 07-A-2619|
|Claimant short name:||WISDOM|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||SYDNEY WISDOM, Pro se|
|Defendant's attorney:||LETITIA JAMES, Attorney General
of the State of New York
By: J. Gardner Ryan, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||April 15, 2019|
|See also (multicaptioned case)|
This claim comes before the Court on defendant's motion to dismiss the claim on the jurisdictional ground of untimeliness. Claimant, an individual incarcerated in a State correctional facility, seeks compensation injuries he claims to have sustained when he was allegedly assaulted and harassed by correction officers at Green Haven Correctional Facility on December 17, 2014. On March 23, 2015, he served upon the Attorney General a notice of intention to file the claim (see Ryan Affirmation, ¶ 3; Exhibit 2), and the claim was filed on November 16, 2015. Defendant filed a verified answer on December 9, 2015, in which the affirmative defense of untimeliness was included (see Verified Answer, ¶ 4 [Second Affirmative Defense], filed December 9, 2015). Claimant then filed an amended claim on January 7, 2016, in which he incorporated by reference the allegations of the initial claim, asserted that any defects in his service of his claim were due to the unavailability of notary services and because defendant's employees mishandled his outgoing mail, and requested that the Court relax the mailing requirements because his mail was "mishandled" (id., ¶¶ 3-9). Claimant has not, however, filed any papers in opposition to the instant motion.
It is required that a notice of intention to file a claim or the claim itself must be served upon the Attorney General within 90 days after accrual of the claim (Court of Claims Act §§ 10 , [3-b]; see also Court of Claims Act § 11 [a] [i]). A timely served notice of intention will extend the time within which to serve and file the claim to one or two years after the date of accrual of a claim, depending upon whether the claim sounds in negligent or unintentional tort (see Court of Claims Act § 10 ), or intentional tort (see Court of Claims Act § 10 [3-b]). It is well established that the filing and service requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed, and the failure to timely serve the claim upon the Attorney General deprives the Court of subject matter jurisdiction (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 ; Matter of Dreger v New York State Thruway Auth., 177 AD2d 762, 762-763 [3d Dept 1991], affd 81 NY2d 721 ; Locantore v State of New York, UID No. 2009-038-517 [Ct Cl, DeBow, J., Feb. 11, 2009]).
The filing of an amended pleading supersedes the initial pleading and generally abates a motion to dismiss that is addressed to the initial superseded pleading (see Novik v Davidson, 262 AD 1058 [3d Dept 1941], amended by Novik v Davidson, 266 AD 813 [3d Dept 1943]; see also National Bondholders Corp. v Joyce, 276 NY 92, 95 ), but under the circumstances presented on this motion, the jurisdictional viability of the amended claim is necessarily dependent upon whether the original claim was timely served and filed, and the motion addressed to the initial claim is properly before the Court.
Defendant's submission demonstrates that the claim accrued on December 17, 2014, that the notice of intention was served on defendant on March 23, 2015, which was 96 days after the December 17, 2014 accrual date. Because the notice of intention was untimely, it did not extend claimant's time to file and serve the claim beyond 90 days and accordingly, the claim that was subsequently filed on November 16, 2015 was untimely and thus jurisdictionally defective. Claimant's effort to address the untimeliness of the claim with an amended claim is ineffective because an amended claim that was untimely served and filed is not a viable claim in and of itself, and where, as here, the initial claim is jurisdictionally defective, the amended claim cannot revive the fatally defective initial claim. In addition, the relief requested in the amended claim - to be excused of late service and filing of the notice of intention and claim - is unavailable because the Court lacks the discretionary authority to excuse a jurisdictional defect. Finally, to the extent that the amended claim implies that defendant should be estopped from asserting its affirmative defense of untimeliness because of alleged misfeasance or malfeasance on the part of corrections personnel in processing mail (see Rivera v State of New York, 5 AD3d 881 [3d Dept 2004]; but see Rodriguez v State of New York, 307 AD2d 657, 657 [3d Dept 2003] [defendant not estopped from claiming lack of jurisdiction because prison officials failed to properly mail claim]), such an argument is not before the Court because claimant has defaulted in appearing on this motion and has failed to argue that the claim should not be dismissed for lack of jurisdiction.
Accordingly, it is
ORDERED, that defendant's motion number M-93449 is GRANTED, and claim number 127060 is dismissed.
April 15, 2019
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Claim number 127060, filed November 16, 2015;
(2) Verified Answer, filed December 9, 2015;
(3) Amended Claim number 127060, filed January 7, 2016;
(4) Affidavit of Service of Sydney Wisdom, sworn to January 4, 2016;
(5) Correspondence of Eileen F. Fazzone, Clerk of the Court of Claims, dated January 15, 2016;
(6) Notice of Motion, dated January 17, 2019;
(7) Affirmation of J. Gardner Ryan, AAG, in Support of Motion to Dismiss, dated January 17,
2019, with Exhibits 1-4;
(8) Affidavit of Service of Susan Martinelli, sworn to January 18, 2019.