|Claimant short name:||BETANCOURT|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||MAUREEN T. LICCIONE|
|Claimant's attorney:||Sacco and Fillas, LLP
By: David A. Craven, Esq.
|Defendant's attorney:||HON. LETITIA JAMES, ATTORNEY GENERAL
By: Kimberly A. Kinirons, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 22, 2021|
|See also (multicaptioned case)|
On November 21, 2016, Emperatriz Betancourt (Claimant) served a Notice of Intention to file a Claim (NI) on the Attorney General (AG) by regular mail. The NI alleged that Claimant was struck by a board on which another swimmer was riding while Claimant was in the water at Jones Beach State Park due to Defendant's (State or Defendant) negligence. On January 27, 2017, an additional copy of the NI was personally served on the AG along with the claim.
The State filed and served a verified answer via NYSCEF denying the allegations set forth in the claim and asserting various affirmative defenses, including that the NI had been served by regular mail. The State has now moved for summary judgment asserting that this Court lacks jurisdiction over the claim and, alternatively, assuming there is jurisdiction, that Claimant assumed the risk of injury. Claimant has opposed the motion.
Summary judgment is a drastic remedy only available when the moving party presents "sufficient evidence to eliminate any material issues of fact" (Winegrad v New York University Medical Center, 64 NY2d 851, 853 ), and the opposing party then fails to "demonstrate by admissible evidence the existence of a factual issue requiring a trial" (Zuckerman v New York City Transit Authority, 49 NY2d 557, 560 ).
The State's waiver of sovereign immunity is conditioned upon strict compliance with the provisions of the Court of Claims Act (CCA). The failure to comply mandates dismissal (Lepkowski v State of New York, 1 NY3d 201 ; Finnerty v New York State Thruway Authority, 75 NY2d 721 ).
CCA § 10 mandates that negligence claims must be filed and served within ninety days of the accrual of the claim unless the claimant serves an NI within that ninety day period (CCA § 10 ). If an NI is properly served, the claim may then be filed and served within two years after accrual. Both a claim and an NI must be served upon the Attorney General either personally or by certified mail, return receipt requested (CCA § 11 [a][i]).
Here, Claimant was injured on August 26, 2016. Although she served an NI within ninety days, it was served by regular mail. Claimant then personally served another copy of the NI together with the claim on January 27, 2017, which was 154 days after the accrual of the claim. The State's answer alleged improper service of the NI, and the consequential untimeliness of the claim, thereby preserving these jurisdictional issues (NYSCEF Doc. No. 3, 8-9).
"Service of the notice of intention by ordinary mail is insufficient to acquire personal jurisdiction over the defendant (see Fulton v State of New York, 35 AD3d 977, 978 [3d Dept 2006], lv denied 8 NY3d 809 ). An NI that is served by regular mail is a nullity and does not serve to extend the time within which to file and serve the claim (see Roesch v State of New York, UID No. 2020-058-039 [Ct Cl, Leahy-Scott, J., Sept. 17, 2020]).
Although Claimant argues that an answer was never served and, therefore, the jurisdictional defenses claimed on the instant motion were waived, that argument does not account for the fact that an answer was uploaded on NYSCEF in a timely manner on February 15, 2017. Since the Uniform Rules for the Court of Claims § 206.5-aa adopts § 202.5-b of the Uniform Rules for the Supreme Court and the County Court, which provides that documents are to be served electronically in e-filed cases, the jurisdictional defenses were not waived.
Since this Court lacks jurisdiction to consider this claim, the Court need not reach the assumption of risk defense.
In accordance with the foregoing it is:
ORDERED, that Defendant's motion to dismiss (Motion No. M-96609) is granted; and it is further
ORDERED, that Claim No. 128829 is hereby dismissed.
September 22, 2021
Hauppauge, New York
MAUREEN T. LICCIONE
Judge of the Court of Claims