New York State Court of Claims

New York State Court of Claims
LOPEZ v. THE STATE OF NEW YORK, # 2020-053-534, Claim No. 129566, Motion No. M-95460

Synopsis

The State's motion to dismiss for lack of jurisdiction is granted and the claim and amended claim are dismissed.

Case information

UID: 2020-053-534
Claimant(s): LEONARDO LOPEZ
Claimant short name: LOPEZ
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 129566
Motion number(s): M-95460
Cross-motion number(s):
Judge: J. DAVID SAMPSON
Claimant's attorney: LEONARDO LOPEZ, Pro Se
Defendant's attorney: HON. LETITIA JAMES
New York State Attorney General
BY: Wendy E. Morcio, Esq.
Assistant Attorney General
Third-party defendant's attorney:
Signature date: August 24, 2020
City: Buffalo
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant Leonardo Lopez, an inmate proceeding pro se, alleges in claim no. 129566 that he had been assaulted by unknown person(s) and then assaulted by correction officer(s) on December 15, 2016, while incarcerated at Wyoming Correctional Facility (Wyoming). Claimant filed claim no. 129566 on April 12, 2017 and an amended claim on June 29, 2020. Defendant moves by motion no. M-95460 to dismiss this claim for lack of jurisdiction. Claimant opposes defendant's motion.

In order to commence an action against the State of New York in the Court of Claims, a claim must be filed and a copy served upon the Attorney General personally or by certified mail, return receipt requested, within ninety (90) days of accrual of the claim, unless within the same time period, a notice of intention to file a claim is served personally or by certified mail, return receipt requested, in which event the claim must be filed and served within two (2) years of accrual of a claim based on negligence or within one (1) year of accrual of an intentional tort claim (Court of Claims Act 10 [3], 10 [3-b] and 11 [a] [i]). The filing and service requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]). The failure to comply with the service requirements of the Court of Claims Act deprives the Court of jurisdiction, requiring dismissal of the claim (Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]; Byrne v State of New York, 104 AD2d 782 [2d Dept 1984], app denied 64 NY2d 607 [1985]). Defendant argues that only a notice of intention was served upon the Attorney General.

Attached to the supporting affidavit of Assistant Attorney General Wendy E. Morcio is an affidavit by Debra L. Mantell, Legal Assistant II in the Albany, New York Office of the Attorney General. According to Ms. Mandell, the Office of the Attorney General was served with a notice of intention to file a claim by certified mail return receipt requested (#7014 0510 0000 8590 6345) on February 13, 2017. In addition, on or about April 28, 2017, the Office of the Attorney General received a letter from the Chief Clerk of the Court of Claims advising that the Court had received and filed a claim on April 12, 2017. A search of the digital case management system was performed to determine if the filed claim referred to in the Court's letter had been served upon the Attorney General's Office as required by statute. The search revealed no indication that the filed claim had been served upon the Attorney General's Office.

Ms. Mantell's affidavit further indicated that on February 20, 2020, the Office of the Attorney General requested that the Court provide it with a copy of the filed claim. After reviewing the contents of the claim, Ms. Mantell indicated in her affidavit that a second search of the digital case management system was performed to locate a notice of intention and/or a claim served by Leonardo Lopez, DIN # 16-R-2457, for an incident that allegedly occurred at Wyoming on or about December 15, 2016. This second search revealed that only a notice of intention to file a claim had been served on the Attorney General's Office on February 13, 2017. According to Ms. Mantell, the digital case management system revealed no indication that the Attorney General's Office had been served with a claim by Leonardo Lopez, or by anyone using DIN # 16-R-2457 for an incident at Wyoming on or about December 15, 2016.

In opposition to defendant's motion, claimant submits a copy of a return receipt card which indicates that something was delivered to the Office of the Attorney General by certified mail, return receipt requested, on February 13, 2017 (see Claimant's Exhibit C). In reply, Assistant Attorney General Wendy E. Morcio attaches as Exhibit B to her reply affidavit a copy of claimant's notice of intention to file a claim which is stamped received by the Attorney General Claims Bureau on February 13, 2017, and a copy of the envelope in which the notice of intention was served. The envelope in which the notice of intention was served bears the same certified mail, return receipt requested, postal number as appears on the receipt attached by claimant as his Exhibit C.

Based on the evidence presented, the Court concludes that the notice of intention to file a claim was served on the Attorney General's Office on February 13, 2017 by certified mail, return receipt requested. At best, the service of the notice of intention extended claimant's time to file and serve an intentional tort claim based on an assault for one year or until December 15, 2017 or to file and serve a negligence claim for two years or until December 15, 2018. According to the Docket Sheet and the original claim, claim no. 129566 was filed on April 12, 2017. No evidence has been presented, however, that the claim, as opposed to the notice of intention, was ever served upon the Attorney General's Office. Accordingly, the claim is jurisdictionally defective as it was never served and must be dismissed (Torres v. State, 107 AD3d 1471 [4th Dept 2013]).

Finally, on June 29, 2020, claimant filed an amended claim no. 129566. This amended claim is untimely even considering the extended time afforded claimant by the service of a notice of intention, as it was filed more than one year after the accrual of an intentional claim for an assault and as it was filed more than two years after accrual of a negligence claim. Moreover, it is well settled, that a jurisdictionally defective claim cannot be cured by amendment and that a claim that has been dismissed cannot be amended (Maynard v State of New York, UID No. 2019-038-615 [Ct Cl, DeBow, J., Dec. 23, 2019]).

Accordingly, defendant's motion no. M-95460 is granted and claim no. 129566 and amended claim no. 129566 are dismissed.

August 24, 2020

Buffalo, New York

J. DAVID SAMPSON

Judge of the Court of Claims

The following were read and considered by the Court:

1. Notice of motion and supporting affidavit of Assistant Attorney General Wendy E. Morcio sworn to March 4, 2020, with annexed Exhibit A;

2. Opposing affidavit of Leonardo Lopez sworn to June 23, 2020, with annexed Exhibits A-E; and

3. reply affidavit of Assistant Attorney General Wendy E. Morcio sworn to July 16, 2020, with annexed Exhibit B.