Application to file late claim alleging negligence in causing claimant to contract pneumonia is denied where cause of action is barred by CPLR Article 2 and claimant fails to adequately state and particularize the nature of the proposed claim and thus fails to demonstrate the appearance of merit.
|Claimant short name:||MOHAMMAD|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANK P. MILANO|
|Claimant's attorney:||MALIK MOHAMMAD|
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
By: Belinda A. Wagner, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||October 29, 2020|
|See also (multicaptioned case)|
Claimant moves for permission to file a late claim, pursuant to Court of Claims Act 10 (6). Defendant opposes the claimant's application.
The claimant's "AUTHENTIC STATEMENT" is unsworn and cannot serve as a proposed claim. Claimant's brief affidavit (proposed claim) alleges that claimant contracted pneumonia at Clinton Correctional Facility in December 2016 and concludes that:
"Defendants irresponsible and careless behaviors, contributed towards Claimant/Affiant contracting such disease. Defendant's always keep cell vents off, making circulation of air, next to impossible. Even when and despite climate change coming into conversation, Affiant's health is being seriously undermined, and the consequences of such undermining, is actively present in the eyes of the Court - right here, right now."
Court of Claims Act 10 (6) provides that the Court, upon application and in its discretion, may permit the late filing and service of a claim "at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules."
Claimant's application was mailed on September 1, 2020, more than three years after the purported negligence cause of action accrued in December, 2016.
Claimant's time to apply for permission to serve and file a late claim sounding in negligence expired in December, 2019 and his cause of action is time-barred by the three-year limitations period provided by CPLR 215.
The claimant's proposed negligence cause of action also lacks the appearance of merit.
It is well-settled that "it would be futile to permit a defective claim to be filed even if the other factors . . . supported the granting of the claimant's motion" (Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]).
Court of Claims Act 10 (6) demands that the "claim proposed to be filed, containing all of the information set forth in section eleven of this act, shall accompany such application" and further requires that the court "consider . . . whether the claim appears to be meritorious."
Court of Claims Act 11 (b) provides that:
"The claim 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 . . . and the total sum claimed"
Case law explains that the proposed claim may not be "patently groundless, frivolous or legally defective, and [that] upon consideration of the entire record, there is cause to believe that a valid cause of action exists" (Rizzo v State of New York, 2 Misc 3d 829, 834 [Ct Cl 2003]; see Dippolito v State of New York, 192 Misc 2d 395 [Ct Cl 2002]; Remley v State of New York, 174 Misc 2d 523 [Ct Cl 1997]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]).
Here, the proposed claim lacks even the appearance of merit because it fails to provide sufficient particularity "to give the court and parties notice of the transactions [and] occurrences . . . intended to be proven and the material elements of each cause of action," as required by CPLR 3013, and fails to adequately set forth the nature of the claim as required by Court of Claims Act 11 (b). As such, the proposed claim fails to satisfy the jurisdictional requirements of the Court of Claims Act.
A claim against the State is permissible only as a result of the State's waiver of sovereign immunity and the statutory requirements conditioning suit must therefore be strictly construed (Kolnacki v State of New York, 8 NY3d 277, 280 ). The Kolnacki court noted that the requirements of section 11 (b) are "substantive conditions upon the State's waiver of sovereign immunity" (quoting Lepkowski v State of New York, 1 NY3d 201, 207 ) and that the failure to satisfy any of the conditions is a jurisdictional defect (Kolnacki, 8 NY3d at 280-281). The Kolnacki decision stresses that "nothing less than strict compliance with the jurisdictional requirements of the Court of Claims Act is necessary" (Kolnacki, 8 NY3d at 281).
The strict pleading requirements of Court of Claims Act 11 (b) is reiterated in Rivera v State of New York, 52 AD3d 1075, 1076 [3d Dept 2008]):
"Statutory conditions placed on claims against defendant must be strictly construed, mandating a dismissal for lack of jurisdiction if the claim does not meet the substantive pleading requirements found in Court of Claims Act § 11 (b)."
The Rivera court, quoting Lepkowski (1 NY3d at 208) reminded that:
"The Court of Claims Act does not require [defendant] to ferret out or assemble information that section 11 (b) obligates the claimant to allege."
The proposed claim fails to state factual allegations which, even if deemed true for the purposes of claimant's late claim application, would tend to show that defendant negligently caused claimant to suffer from pneumonia.
Finally, the Court notes that claimant was previously denied permission to file and serve a late claim based partially on the same grounds set forth in the present application (Mohammad v State of New York, M-93640 [Milano, J., filed June 19, 2019], motion to renew denied, M-94497 [Milano, J., filed January 2, 2020]).
The claimant's motion for permission to file a late claim is denied.
October 29, 2020
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
1. Claimant's Individual Motion, filed September 4, 2020, and attached exhibits;
2. Affidavit of Malik Mohammad, sworn to April 7, 2020;
3. Affirmation in Opposition of Belinda A. Wagner, dated September 3, 2020, and attached exhibits.