Opinion
# 2017-040-115 Claim No. 129787 Motion No. M-90718
08-15-2017
LEOPOLD MILLS v. THE STATE OF NEW YORK
Leopold Mills, 99-A-3798, Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Belinda A. Wagner, Esq., AAG
Synopsis
State's Motion to Dismiss granted as Notice of Intention untimely served and Claim untimely served and filed.
Case information
| UID: | 2017-040-115 |
| Claimant(s): | LEOPOLD MILLS |
| Claimant short name: | MILLS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 129787 |
| Motion number(s): | M-90718 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Leopold Mills, 99-A-3798, Pro Se |
|---|---|
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Belinda A. Wagner, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | August 15, 2017 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, Defendant's pre-Answer Motion to dismiss the Claim pursuant to CPLR 3211(a)(2) and (8), on the basis that the Court lacks both subject matter jurisdiction over the Claim and personal jurisdiction over the Defendant, is granted.
This pro se Claim, which was filed in the office of the Clerk of the Court on June 5, 2017, alleges that, while incarcerated at Eastern NY Correctional Facility in 2015, Claimant agreed to have surgery performed on his prostate. The surgery was performed on April 30, 2015. Claimant asserts that he suffered from post-operative issues he did not have before the surgery. Claimant alleges that, prior to the surgery, neither the surgeon nor the Department of Corrections and Community Supervision's doctor advised him of alternative treatment options or the foreseeable risks of the surgery, in order to allow Claimant to make a knowledgeable, informed consent (Claim, ¶ 2).
Pursuant to the Court of Claims Act provisions applicable to personal injury actions, Claimant was required to file and serve his Claim within 90 days from the date of accrual unless a written Notice of Intention to File a Claim was served upon the Attorney General within such time period. In that case, the Claim itself was required to be filed and served upon the Attorney General within two years after the accrual of the Claim (Court of Claims Act § 10[3] [which applies to Claims asserting personal injuries caused by negligence or unintentional torts, including, but not limited to, those sounding in medical malpractice]). In either case, Claimant was required to initiate action within 90 days of the Claim's accrual.
Court of Claims Act § 11(a)(i) provides that the Claim shall be filed with the Clerk of the Court and that a copy shall be served upon the Attorney General within the time period provided in Section 10 of the Court of Claims Act, either personally or by certified mail, return receipt requested. The statute further provides that service by certified mail, return receipt requested, is not complete until the Claim or Notice of Intention to File a Claim is received by the Attorney General. It is well established that failure to timely serve the Attorney General in strict compliance with Court of Claims Act § 11 gives rise to a jurisdictional defect (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 723 [1989]; Matter of Dreger v New York State Thruway Auth., 177 AD2d 762, 763 [3d Dept 1991], affd 81 NY2d 721 [1992]; Suarez v State of New York, 193 AD2d 1037, 1038 [3d Dept 1993]).
Pursuant to Court of Claims Act § 11(c), however, any such defect is waived unless it is raised with particularity as an affirmative defense either by motion to dismiss prior to service of the responsive pleading, or in the responsive pleading itself (see Knight v State of New York, 177 Misc 2d 181, 183 [Ct Cl 1998]).
In her affirmation submitted in support of Defendant's motion, Defense counsel asserts that, on September 23, 2015, Claimant served a Notice of Intention to File a Claim upon the Attorney General (Affirmation of Belinda A. Wagner, Esq., Assistant Attorney General [hereinafter, "Wagner Affirmation"], ¶3 and Ex. A attached). Counsel further asserts that the Claim was received by the Attorney General on June 2, 2017 (id. and Ex. B attached). The Claim accrued on April 30, 2015. Thus, the Notice of Intention was served upon Defendant almost five (5) months after accrual and beyond the 90 days provided for in Court of Claims Act § 10(3). Claimant did not submit any opposition to Defendant's Motion.
Court of Claims Act § 10 is more than a statute of limitations; it is a jurisdictional prerequisite to bringing and maintaining an action in this Court (Mallory v State of New York, 196 AD2d 925, 926 [3d Dept 1993]; DeMarco v State of New York, 43 AD2d 786 [4th Dept 1973], affd 37 NY2d 735 [1975]; Antoine v State of New York, 103 Misc 2d 664 [Ct Cl 1980]). Failure to timely comply with the statutory service and filing requirements of the Court of Claims Act constitutes a fatal jurisdictional defect requiring dismissal (Lyles v State of New York, 3 NY3d 396, 400-401 [2004]; Buckles v State of New York, 221 NY 418 [1917]; Langner v State of New York, 65 AD3d 780, 781 [3d Dept 2009]; Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]). The Court cannot waive a defect in jurisdiction that has been timely raised (see Thomas v State of New York, 144 AD2d 882 [3d Dept 1988]). The defect asserted was timely and properly raised with particularity in this pre-Answer Motion, in accordance with Court of Claims Act § 11(c).
Based upon the foregoing, Defendant's pre-Answer Motion is granted and the Claim is dismissed for failure to timely serve the Notice of Intention and Claim upon Defendant as required by CCA §§ 10(3) and 11(a)(i). As the Notice of Intention was not timely served upon Defendant, it did not extend Claimant's time to serve and file the Claim and, thus, the Claim is untimely.
August 15, 2017
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims The following papers were read and considered by the Court on Defendant's Motion to dismiss: Papers Numbered Notice of Motion, Affirmation in Support, & Exhibits Attached 1 Filed Papers: Claim