Defendant's motion to dismiss the claim for lack of jurisdiction due to improper method of service denied for failure to make the required evidentiary showing. Claimant's motion to compel defendant to respond to certain discovery demands denied as premature.
|Claimant short name:||HUMPHREY|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Motion number(s):||M-95721, M-95838|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||JIMMY HUMPHREY, 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:||November 9. 2020|
|See also (multicaptioned case)|
Claimant, an individual currently incarcerated in a State correctional facility, filed this claim seeking compensation for injuries allegedly sustained as the result of an assault in the recreation yard at Green Haven Correctional Facility (CF) on November 28, 2019. Defendant now makes this pre-answer motion to dismiss the claim for lack of jurisdiction for failure to comply with the service requirements of Court of Claims Act § 11 (a) (i) (M-95721). Claimant opposes the motion, and moves separately to compel defendant to respond to certain discovery demands (M-95838). Defendant has not responded to claimant's motion to compel.
The claim alleges that on the evening of November 28, 2019, claimant was assaulted by an unknown assailant in the recreation yard at Green Haven CF, and that he sustained three facial lacerations that required stitches (see Claim No. 134722, ¶¶ 2-3). The claim alleges violations of claimant's Eighth and Fourteenth Amendment rights "based on negligence, cruel and unusual punishment, deliberate indifference and failure to protect" (id. at ¶ 4). The claim alleges that defendant was aware that the recreation yard at Green Haven CF posed a substantial risk to claimant's safety and that claimant was injured as a result of defendant's breach of its duty to protect claimant through its deliberate indifference in failing to equip the hallways and recreation yard at Green Haven CF with cameras, to have the recreation yard staffed with a sufficient number of correction officers, and failing to require inmates to pass through a metal detector on their way to the recreation yard, which resulted in inmates being able to bring razors into the recreation yard (see id. at ¶ 5, pp. 3-4). The claim also asserts a cause of action for negligent hiring, training, supervision, and retention (see id. at ¶ 9). The claim seeks $400,000 in damages for claimant's physical and emotional injuries as a result of the alleged negligence of defendant's employees (see id. at ¶¶ 7-11).
The Court will first address defendant's motion to dismiss the claim for improper service, as it implicates the Court's jurisdiction over the claim. Court of Claims Act ¶ 11 (a) (i) requires that if a claim is served upon the Attorney General by mail, it must be accomplished by certified mail, return receipt requested (CMRRR). It is well established that the service requirements of the Court of Claims Act must be strictly construed (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 ; Martinez v State of New York, 282 AD2d 580, 580 [2d Dept 2001], lv denied 96 NY2d 720 ). Service of the claim by ordinary mail is insufficient to acquire personal jurisdiction over the defendant (see Govan v State of New York, 301 AD2d 757, 758 [3d Dept 2003], lv denied 99 NY2d 510 ), and the failure to effect service by CMRRR is a jurisdictional defect that requires dismissal of the claim (see Turley v State of New York, 279 AD2d 819, 819 [3d Dept 2001], lv denied 96 NY2d 708 , rearg denied 96 NY2d 855 ; Philippe v State of New York, 248 AD2d 827, 827 [3d Dept 1998]).
In support of its motion to dismiss, defendant argues that although claimant served the Attorney General with a notice of intention by CMRRR on December 16, 2019, as required by Court of Claims Act ¶ 11 (a) (i), the claim itself was served on the Attorney General by regular mail on April 20, 2020 (see Strickland Smith Affirmation, ¶¶ 3-4). Although the Assistant Attorney General defending the claim states that the notice of intention and claim are annexed as Exhibits A and B to her affirmation in support of the motion (see id.), there are no such exhibits included with defendant's submission. In opposition to defendant's motion to dismiss, claimant argues that a notice of intention was served on the Attorney General on December 16, 2019 by CMRRR but does not address the method of service of the claim itself (see Humphrey Reply Affidavit, ¶ 2). Inasmuch as defendant has failed to make the required evidentiary showing that the claim was served by regular mail rather than by CMRRR, defendant has not demonstrated that the Court lacks jurisdiction over the claim based on claimant's failure to comply with Court of Claims Act § 11 (a) (i), and the claim will not be dismissed on that basis.
Turning to claimant's motion to compel defendant to respond to his discovery demands, claimant seeks an order compelling defendant to respond to a notice to admit (styled a "Demand for Admission") and a discovery demand seeking disclosure of certain documents (see Notice of Motion, dated Aug. 19, 2020; Claimant's Demand for Admission, sworn to Aug. 19, 2020; Claimant's Demand for Discovery, sworn to Aug. 19, 2020). Defendant has not responded to claimant's motion to compel. As noted above, defendant has not yet interposed an answer to the claim, and this motion is thus premature inasmuch as issue has not been joined. Moreover, even had issue been joined, the CPLR authorizes a motion to compel disclosure only "[i]f a person fails to respond to or comply with any request, notice, interrogatory, demand, question or [discovery] order" (CPLR 3124), and here, claimant's submissions indicate that the notice to admit and discovery demand were served on defendant for the first time on August 19, 2020, in connection with the instant motion and in opposition to defendant's motion to dismiss the claim (see Humphrey Affidavit of Service, sworn to Aug. 19, 2020). Claimant makes no argument in his Notice of Motion, nor has he supplied any documentary evidence, that the demands were served on defendant at any time prior to the filing of this motion. Claimant thus has failed to demonstrate that the instant motion was preceded by service of the subject discovery demands and that defendant failed to adequately comply with the requests, and the motion to compel must be denied as premature (see Keitt v State of New York, UID No. 2018-038-532 [Ct Cl, DeBow, J., Apr. 6, 2018]; Dorvincil v State of New York, UID No. 2018-038-564 [Ct Cl, DeBow, J., June 27, 2018]; Perez v State of New York, UID No. 2016-018-729 [Ct Cl, Fitzpatrick, J., July 20, 2016]).
Accordingly, it is
ORDERED, that defendant's motion number M-95721 is DENIED; and it is further
ORDERED, that defendant is directed to file and serve an answer to the claim with thirty (30) days of the filing of this Decision and Order; and it is further
ORDERED, that claimant's motion number M-95838 is DENIED.
November 9. 2020
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Claim number 134722, filed May 26, 2020;
2. Notice of Motion (M-95721), dated June 18, 2020;
3. Affirmation of Jeane L. Strickland Smith, AAG, in Support of Motion, dated June 18, 2020;
4. Reply Affidavit of Jimmy Humphrey, sworn to August 19, 2020;
5. Notice of Motion (M-95838), dated August 19, 2020;
6. Claimant's Demand for Admission, sworn to August 19, 2020;
7. Claimant's Demand for Discovery, sworn to August 19, 2020;
8. Affidavit of Service of Jimmy Humphrey, sworn to August 19, 2020.