New York State Court of Claims

New York State Court of Claims
BARRY v. JAMES LAMANNA "WILLIAM M. BEERS." JOHN J. TECLE." "SERGEANT." THE STATE OF NEW YORK, # 2019-038-584 , Claim No. 133223, Motion No. M-94350, Cross-Motion No. CM-94491

Synopsis

Defendant's motion to dismiss the claim for untimely service on the Attorney General granted. Claimant conceded that the notice of intention failed tom comply with the pleading requirements of Court of Claims Act 11 (b) and it was therefore insufficient to extend the time to file the claim. Claimant's cross motion for late claim relief denied without prejudice. Claimant failed to attach a copy of the proposed claim to the motion.

Case information

UID: 2019-038-584
Claimant(s): MAMADOU BARRY
Claimant short name: BARRY
Footnote (claimant name) :
Defendant(s): JAMES LAMANNA "WILLIAM M. BEERS." JOHN J. TECLE." "SERGEANT." THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 133223
Motion number(s): M-94350
Cross-motion number(s): CM-94491
Judge: W. BROOKS DeBOW
Claimant's attorney: MAMADOU BARRY, Pro se
Defendant's attorney: LETITIA JAMES, Attorney General
of the State of New York
By: Jeane L. Strickland Smith, Assistant Attorney General
Third-party defendant's attorney:
Signature date: September 10, 2019
City: Saratoga Springs
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant, an inmate in a State correctional facility, filed this claim seeking compensation for injuries allegedly sustained as the result of defendant's failure to properly treat his medical emergency. The claim also seeks damages for the destruction of property and wrongful confinement. Defendant moves to dismiss the claim (1) for untimely service inasmuch as the notice of intention failed to comply with the pleading requirements of Court of Claims Act 11 and was therefore insufficient to extend the time to file the claim, and (2) for failure to state a cause of action. In response to defendant's motion, claimant concedes that his notice of intention failed to comply with Court of Claims Act 11 and cross-moves for late claim relief. Defendant has not opposed claimant's cross motion.

On December 10, 2018, defendant was served with a notice of intention stating that claimant intended to bring a claim for "mishandling of a medical emergency[,] . . . retaliation of the mishandling of a medical emergency[,] . . . distroyed [sic] personal property[,] . . . [and] wrongful confinement, . . . among other violations" (Strickland Smith Affirmation in Support of Motion to Dismiss, Exhibit A, 6). The notice of intention alleged an accrual date of October 11, 2018 to November 7, 2018 (see id. at 5). The claim was thereafter served on the Attorney General by certified mail, return receipt requested, on June 17, 2019 (see Strickland Smith Affirmation in Support of Motion to Dismiss, 5; see id., Exhibit B). An amended claim was thereafter filed as of right on June 24, 2019 (see CPLR 3025 [a]).

Defendant argues that claimant's notice of intention did not comply with the pleading requirements of Court of Claims Act 11 (b) because it failed to "state the time when and place where such claim arose and the nature of the same" (see Strickland Smith Affirmation in Support of Motion to Dismiss, 4). Defendant argues that because the notice of intention is jurisdictionally defective, it failed to extend claimant's time to file the claim, and thus that the claim is untimely because it was served over eight months after the alleged accrual date (see id. 4, 6). In response, claimant concedes that the notice of intention "has failed to comply with the specificity requirements of Court of Claims Act 11, as it did not state the time when and place where such claims arose, and the nature of the facts thereof" (Reply To Motion To Dismiss and Affidavit In Support of Cross Motion For Permission To File A Late Claim [hereinafter Reply], 5).

A claim for injuries to property or personal injuries allegedly caused by the negligence or unintentional tort or by the intentional tort of a state employee must be filed and served upon the Attorney General within 90 days of its accrual (see Court of Claims Act 10 [3], [3-b]). The time within which to file and serve the claim alleging negligence or an unintentional tort will be extended by two years from the accrual date if a notice of intention to file the claim is served upon the Attorney General within that same 90-day period (see Court of Claims Act 10 [3]), or by one year from the accrual date for a claim alleging intentional tort if the notice of intention is served upon the Attorney General within that 90-day period (see Court of Claims Act 10 [3-b]). The Court of Claims Act further requires as relevant here, that a notice of intention "shall state the time when and place where such claim arose, the nature of same, [and] the items of damage or injuries claimed to have been sustained" (Court of Claims Act 11 [b]). A notice of intention that does not set forth sufficient information to satisfy Court of Claims Act 11 (b) fails to extend beyond 90 days the time within which to file and serve the claim (see Langner v State of New York, 65 AD3d 780, 782 [3d Dept 2009]), and when the notice of intention is deficient, the related claim that is filed and served more than 90 days after accrual of the claim is properly dismissed for lack of jurisdiction (see Prisco v State of New York, 62 AD3d 978, 979 [2d Dept 2009], lv denied 13 NY3d 706 [2009]). Here, claimant concedes that his notice of intention failed to comply with the pleading requirements of Court of Claims Act 11 (b), and thus it is undisputed that the notice of intention was insufficient to extend claimant's time to file the claim. The initial claim was filed on June 17, 2019, and the amended claim was filed on June 24, 2019, significantly more than 90 days after the alleged accrual date. Accordingly defendant's motion to dismiss the claim as untimely will be granted, and the claim will be dismissed.(1)

Turning to claimant's cross motion for permission to file a late claim, which defendant has not opposed, the Court of Claims Act requires that a motion seeking late claim relief be accompanied by a proposed claim that meets the pleading requirements of Court of Claim Act 11 (see Court of Claims Act 10 [6]). The failure to comply with this requirement is a jurisdictional defect that requires denial of the motion (see Davis v State of New York, 28 AD2d 609, 610 [3d Dept 1967]; Di Bacco v State of New York, 57 Misc 2d 832, 834 [Ct Cl 1968]; Crule v SUNY at Buffalo, UID No. 2019-053-514 [Ct Cl, Sampson, J., May 14, 2019]; Thompson v State of New York, UID No. 2008-044-577 [Ct Cl, Schaewe, J., Sept. 9, 2008]). Claimant states in his cross motion that in the event his application for late claim relief is granted, he "will . . . submit[] an Amended Claim . . . which will more thoroughly plead all causes of action in a specific and well defined format" (Barry Reply, 16). By his own admission, claimant's motion is unsupported by a proposed claim, and for that reason, his motion for late claim relief will be denied without prejudice to claimant filing and serving a new motion seeking late claim relief.

Accordingly, it is

ORDERED, that defendant's motion number M-94350 is GRANTED and Claim No. 133223 is hereby DISMISSED; and it is further

ORDERED, that claimant's cross motion number M-94491 is DENIED without prejudice to an application for late claim relief accompanied by a proposed claim.

September 10, 2019

Saratoga Springs, New York

W. BROOKS DeBOW

Judge of the Court of Claims

Papers considered:

1. Amended Claim number 133223, filed June 24, 2019;

2. Notice of Motion (M-94350), dated July 19, 2019;

3. Affirmation in Support of Motion to Dismiss of Jeane L. Strickland Smith, AAG, dated July 19, 2019, with Exhibits A-B;

4. Reply and Notice of Cross Motion For Permission To File A Late Claim, dated August 7, 2019;

5. Reply of Mamadou Barry to Motion to Dismiss and Affidavit in Support of Cross Motion for Permission to File a Late Claim, sworn to August 16, 2019;

6. Affidavit of Service of Mamadou Barry, sworn to August 16, 2019.


1. Because the claim must be dismissed as untimely on the ground that the notice of intention was jurisdictionally defective, the Court need not consider defendant's additional argument that the claim must be dismissed for failure to state a cause of action.