Motion to dismiss the claim granted; Notice of Intention, served by regular mail, did not extend Claimant's time to serve and file the claim and Claimant failed to timely serve the Claim in accordance with Court of Claims Act §§ 10 (3), (3-b) and 11.
|Claimant short name:||ROESCH|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CATHERINE E. LEAHY-SCOTT|
|Claimant's attorney:||Joseph Roesch, Pro Se|
|Defendant's attorney:||Hon. Letitia James, New York State Attorney General
By: Thomas Trace, Esq. Associate Attorney
|Third-party defendant's attorney:|
|Signature date:||September 17, 2020|
|See also (multicaptioned case)|
Pro se Claimant Joseph Roesch filed this Claim on January 11, 2019 alleging a cause of action for dental malpractice. The Claim arises from a tooth extraction conducted on May 17, 2018 at Central New York Psychiatric Center, where Claimant is a civilian resident.
Defendant moves to dismiss the Claim pursuant to CPLR 3211 (a) (2) and (8) on the grounds that the Court lacks both personal jurisdiction and subject matter jurisdiction because Claimant failed to timely serve the Claim or a Notice of Intention to File a Claim within 90 days of accrual in accordance with Court of Claims Act §§ 10 (3), (3-b) and 11.(1) In particular, Defendant argues that Claimant's service of a Notice of Intention to File the Claim by regular mail does not comport with Court of Claims Act § 11 (a) and thus did not extend Claimant's time to file the Claim. This jurisdictional objection was raised with particularity in Defendant's Verified Answer and is preserved (see Court of Claims Act § 11 [c] [i]; Affirmation of Thomas Trace, Esq., Associate Attorney, Ex G [Verified Answer] ¶ 15 [Twelfth Affirmative Defense], ¶ 21 [Eighteen Affirmative Defense]; id. Ex H [Verified Answer] ¶ 15 [Twelfth Affirmative Defense], ¶ 21 [Eighteen Affirmative Defense]).(2)
Court of Claims Act § 11 (a) (i) provides that a "claim shall be filed with the clerk of the court; and . . . a copy 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." "A claimant seeking to recover damages for personal injuries caused by the negligence, intentional tort or unintentional tort of an officer or employee of the State must file and serve a claim or, alternatively, a notice of intention to file such a claim, upon the Attorney General within 90 days after the accrual thereof" (Maude V. v New York State Off. of Children & Family Servs., 82 AD3d 1468, 1469 [3d Dept 2011]; see Court of Claims Act § 10 , [3-b]). "[A]s suits against [the State] are permitted only by virtue of its waiver of sovereign immunity and are in derogation of the common law, the failure to strictly comply with the filing or service provisions of the Court of Claims Act divests the court of subject matter jurisdiction and compels dismissal of the claim" (Caci v State of New York, 107 AD3d 1121, 1122 [3d Dept 2013] [internal quotation marks and citations omitted]; see Finnerty v New York State Thruway Auth., 75 NY2d 721, 723 ).
The Court must first determine when Claimant's cause of action accrued. Claimant appears to rely upon the continuous treatment doctrine as the Claim asserts he received treatment following the alleged malpractice on several dates continuing until at least November 16, 2018 (see e.g. Affirmation of Thomas Trace, Esq., Associate Attorney, Ex C [Claim] ¶ 2). However, the initiation of legal proceedings concerning the alleged malpractice "sever[s] any continuing relationship of trust in the physician-patient relationship and end[s] any continuous treatment tolling at that point" (Toxley v State of New York, 279 AD2d 927, 929 [3d Dept 2001] [internal quotation marks and citation omitted], lv denied 96 NY2d 711 ; see Garofolo v State of New York, 80 AD3d 858, 859-860 [3d Dept 2011], see O'Connor v State of New York, 15 AD3d 827, 828 [3d Dept 2005], lv denied 5 NY3d 702 ).
Claimant initiated legal proceedings concerning the alleged malpractice on July 9, 2018, when he served a Notice of Intention upon the Attorney General's Office (see O'Connor, 15 AD3d at 828; Toxley, 279 AD2d at 929; Vidal v State of New York, UID No. 2012-015-291 [Ct Cl, Collins. J., Jan. 27, 2012]; Affirmation of Thomas Trace, Esq., Associate Attorney ¶ 2; Claim, at 21). Claimant's service of a Notice of Intention marked the end of his trust and confidence in the dental services provided and interrupted any tolling of the accrual of his dental malpractice claim (see O'Connor, 15 AD3d at 828; Vidal, UID No. 2012-015-291). Consequently, assuming the continuous treatment doctrine is applicable, the Claim for dental malpractice accrued no later than July 9, 2018. Thus, Claimant was required to file and serve the Claim or serve a Notice of Intention to File such a Claim on or before October 9, 2018 (see Court of Claims Act §§ 10 , [3-b]; 11 [a] [i]).(3)
Defendant argues that it was served with a Notice of Intention to File a Claim by regular mail on July 9, 2018 (see Affirmation of Thomas Trace, Esq., Associate Attorney ¶ 2). In support of this contention, Defendant includes a copy of the envelope in which the Notice of Intention to File a Claim was served upon the Attorney General's Office (see Affirmation of Thomas Trace, Esq., Associate Attorney, Ex B). The envelope bears one regular first-class mail stamp and contains none of the markings or label of certified mail, return receipt requested. Claimant did not submit an affidavit of service for the Notice of Intention and otherwise failed to present any proof establishing proper service of the Notice of Intention upon the Attorney General in accordance with Court of Claims Act § 11 (a) (i). Because Claimant improperly served the Notice Intention upon the Attorney General by regular mail, his time to serve and file the Claim was not extended (see Court of Claims Act § 10 , [3-a]; Yunga v State of New York, UID No. 2019-040-041 [Ct Cl, McCarthy, J., June 12, 2019]). Thus, Claimant was required to file and serve his Claim on or before October 9, 2018.
However, the Claim was neither timely served nor filed within the 90-day statutory period. Defendant submits date stamped copies of two identical Claims served upon the Attorney General's Office. The first Claim, which was served on January 14, 2020 by certified mail, return receipt requested, is clearly untimely (see Affirmation of Thomas Trace, Esq., Associate Attorney, Exs C, D; see also Court of Claims Act § 11 [a] [i] [service upon the Attorney General by certified mail return receipt requested is not completed until the Attorney General receives the Claim]). Similarly, the second Claim served on the Attorney General's Office is also untimely as it was served on January 28, 2019 (see Affirmation of Thomas Trace, Esq., Associate Attorney, Exs E, F). Moreover, the second Claim was improperly served by regular mail. Claimant did not submit any proof to rebut this contention.
Additionally, the Claim was not filed with the Clerk of the Court until January 11, 2019. In sum, Claimant's failure to timely and properly serve the Claim deprives this Court of subject matter jurisdiction over the Claim (see Finnerty, 75 NY2d at 723; Caci, 107 AD3d at 1122).
Accordingly, it is hereby
ORDERED Defendant's motion number M-95698 is granted and Claim No. 132512 is DISMISSED.
September 17, 2020
Albany, New York
CATHERINE E. LEAHY-SCOTT
Judge of the Court of Claims
The Court has considered the following in deciding this motion:
(1) Notice of Motion to Dismiss, dated July 16, 2020.
(2) Affirmation of Thomas Trace, Esq., Assistant Attorney General, dated July 16, 2020 and the exhibits attached thereto.
(3) Claimant's Affirmation in Support of Response to Motion to Dismiss Claim, dated July 30, 2020.
(4) Claimant's Letter, dated August 17, 2020.
1. By Executive Order 202 et seq., Governor Andrew M. Cuomo extended the tolling of "any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state." The parties have consented to a return date of September 16, 2020 for the above motion.
2. Defendant avers that Claimant served two identical claims upon it. Consequently, Defendant filed two identical answers (see Affirmation of Thomas Trace, Esq., Associate Attorney ¶ 5 & Exs G, H). However, Claimant only filed one Claim with the Chief Clerk of the Court of Claims, Claim No. 132512.
3. The ninetieth day after accrual of the Claim was Sunday, October 7, 2018. Moreover, Monday, October 8 2018 was Columbus Day, a public holiday (see General Construction Law § 24). Thus, Claimant had until Tuesday, October 9, 2018 to serve a Notice of Intention or a Claim (see id. § 25-a ).