Defendant's motion to dismiss claim due to service by regular mail. Claimant's motion for a preliminary injunction and a temporary restraining order.
|Claimant short name:||CAMARANO|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The caption has been amended, sua sponte, to reflect the State of New York as the only properly named defendant.|
|Motion number(s):||M-93555, M-93828|
|Judge:||Gina M. Lopez-Summa|
|Claimant's attorney:||Robert Camarano, Pro Se|
|Defendant's attorney:||Hon. Letitia James, Attorney General
By: Jeane L. Strickland Smith, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 20, 2019|
|See also (multicaptioned case)|
The following papers were read and considered by the Court on these motions: Defendant's Notice of Motion to Dismiss; Defendant's Affirmation in Support of Motion to Dismiss with annexed Exhibits A-B; Claimant's "Response and Reply" filed March 27, 2019; Claimant's Notice of Motion for Temporary Restraining Order and Preliminary Injunction; Claimant's "Affirmation" in Support of Motion for Temporary Restraining Order and Preliminary Injunction with annexed copy of Claimant's "Response and Reply"; and Defendant's Affirmation in Opposition to Motion for Temporary Restraining Order and Preliminary Injunction.
Defendant, the State of New York, has brought a motion pursuant to Court of Claims Act §§ 10 and 11 seeking an order dismissing the claim. Claimant, Robert Camarano, a pro se inmate, has opposed defendant's motion and brought a motion seeking a Temporary Restraining Order as well as a Preliminary Injunction.
Claimant alleges in his claim that at some point in 2017 he was seen by Dr. Murphy, a Department of Corrections Dermatologist, at Fishkill Correctional Facility. Claimant contends that during the appointment Dr. Murphy performed a biopsy and removed an entire layer of healthy skin from claimant. Claimant states that the area where Dr. Murphy performed the biopsy has not healed for over a year. Months after the biopsy claimant was informed by Dr. Kim, the facility physician, that the biopsy revealed that claimant had a Basal Cell Carcinoma. Claimant asserts that he does not have skin cancer and that the facility physicians are conspiring to cover up Dr. Murphy's malpractice. Claimant states in his claim that he wants the open wound sewed up by a different physician and is seeking a "temporary restraining order and injunction against defendant denying Claimant immediate medical treatment." Claimant also seeks, inter alia, damages for his pain and suffering.
Defendant states that the claim must be dismissed since the claim was served by regular mail as opposed to certified mail, return receipt requested. In support, defendant submitted a copy of the served claim, together with a copy of the envelope it arrived in evincing postage in the amount of one dollar and thirty cents.
Court of Claims Act § 11 (a) provides that a copy of the claim ". . . shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for filing with the clerk of the court . . . ." The filing and service requirements contained in the Court of Claims Act § 11 are jurisdictional in nature and therefore must be strictly construed (Finnerty v New York State Thruway Authority, 75 NY2d 721 ). In this case, the requirement that defendant be served in accordance with Court of Claims Act § 11 was not met as the claim was served by ordinary mail (Costello v State of New York, 164 AD3d 1420 [2d Dept 2018]). As "the use of ordinary mail to serve the claim upon the Attorney-General is insufficient to acquire jurisdiction over the State" (Turley v State of New York, 279 AD2d 819 [3d Dept 2001]), the Court is deprived of jurisdiction.
Accordingly, the Court must dismiss the claim.
Given the Court's aforementioned dismissal of the underlying action, claimant's motion seeking a temporary restraining order and a preliminary injunction must be denied as moot. Additionally, the Court of Claims is a Court of limited jurisdiction which does not have jurisdiction over strictly equitable claims against the State (Madura v State of New York, 12 AD3d 759 [3d Dept 2004] lv denied 4 NY3d 704 ; Zutt v State of New York, 50 AD3d 1131 [2d Dept 2008]). Consequently, given the facts of this case, this Court is without authority to issue a temporary restraining order or a preliminary injunction in this matter (id.; Guy v State of New York, 18 AD3d 936 [3d Dept 2005]; Ozanam Hall of Queens Nursing Home v State of New York, 241 AD2d 670 [3d Dept 1997]).
Therefore, for the foregoing reasons, defendant's motion to dismiss the claim is granted. Additionally, claimant's motion is denied.
September 20, 2019
Hauppauge, New York
Gina M. Lopez-Summa
Judge of the Court of Claims