Opinion
# 2017-032-007 Claim No. 128802 Motion No. M-89710 Cross-Motion No. CM-89766
03-08-2017
SETH MITCHELL v. THE STATE OF NEW YORK
Seth Mitchell, Pro Se Hon. Eric T. Schneiderman, NYS Attorney General By: Lawrence E. Kozar, Assistant Attorney General, Of Counsel
Synopsis
Defendant's motion to dismiss for lack of subject matter jurisdiction is granted, and claimant's cross motion is denied as moot.
Case information
| UID: | 2017-032-007 |
| Claimant(s): | SETH MITCHELL |
| Claimant short name: | MITCHELL |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128802 |
| Motion number(s): | M-89710 |
| Cross-motion number(s): | CM-89766 |
| Judge: | JUDITH A. HARD |
| Claimant's attorney: | Seth Mitchell, Pro Se |
| Defendant's attorney: | Hon. Eric T. Schneiderman, NYS Attorney General By: Lawrence E. Kozar, Assistant Attorney General, Of Counsel |
| Third-party defendant's attorney: | |
| Signature date: | March 8, 2017 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
On November 14, 2016, claimant filed the instant claim seeking damages arising from the failure of the Supreme Court, New York County to enter a default judgment in his favor. In lieu of an answer, defendant moves to dismiss the claim for lack of subject matter jurisdiction inasmuch as it was not filed and served upon the Attorney General within 90 days of accrual and, further, the Court of Claims does not sit in review of determinations by Supreme Court. Claimant opposes the motion and cross-moves for various forms of relief, including a settlement conference among the parties, an order requiring defendant to answer his claim, and leave to implead New York University as a third party defendant in the action.
Claimant requested oral argument in this matter by letter to the Court dated January 17, 2017. It is well settled that motions in the Court of Claims are on submission of papers, unless oral argument is permitted in the Court's discretion (see 22 NYCRR 206.9 [c]; Safran v State of New York, UID No. 2014-018-504 [Ct Cl, Fitzpatrick, J., Feb. 19, 2014]). After a careful review of the claim, motion papers, affidavits, and exhibits, the Court has determined oral argument to be unnecessary and will determine the instant motion and cross motion upon the papers submitted.
Specifically, the claim alleges that "state employees charged with the timely, impartial, unbiased, and lawful adjudication of New York County, Civil Term, Supreme Court of the State of New York lawsuit Mitchell vs. New York University, et al. (Index No. 150622/2013) have committed fraud, depriving [claimant] of required entry of default of $49 million" (Claim ¶ 2). Claimant further states that the failure of Supreme Court to enter the default judgment caused him extreme financial distress, mental anguish, and emotional turmoil (Claim ¶ 2). He therefore demands judgment against defendant in the amount of $49 million, plus 9% default interest (Claim ¶ 6).
By correspondence to the Court dated February 12, 2017 and March 3, 2017, claimant seeks to increase the amount of damages stated in his claim. The Court declines to consider any submissions from claimant that were filed after the returnable date of January 18, 2017 (see Goll v State of New York, UID No. 2011-040-049 [Ct Cl, McCarthy, J., Sept. 12, 2011]). However, were the Court to consider the contents of such submissions, they would not alter the result herein. --------
Turning first to the issue of timeliness, "[a] claim to recover damages for injuries to property or for personal injuries caused by the negligence or unintentional tort of an officer or employee of the state while acting as such officer or employee, shall be filed and served upon the attorney general within [90] days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor" (Court of Claims Act § 10 [3]). "An action accrues . . . when all of the facts necessary to sustain the cause of action have occurred, so that a party could obtain relief in court" (Vigilant Ins. Co. of Am. v Housing Auth. of City of El Paso, Tex., 87 NY2d 36, 43 [1995]; see e.g. Torrance Constr., Inc. v Jaques, 127 AD3d 1261, 1265-1266 [3d Dept 2015]). "Failure to comply with the statutory filing and service requirements deprives the Court of Claims of subject matter jurisdiction and compels dismissal of the claim" (Maude v New York State Off. of Children & Family Servs., 82 AD3d 1468, 1469 [3d Dept 2011]; see Langner v State of New York, 65 AD3d 780, 781 [3d Dept 2009]; Best v State of New York, 42 AD3d 699, 700 [3d Dept 2007]).
Based upon claimant's allegations, the latest possible date of accrual for his action is January 8, 2014, which is the date on which Supreme Court issued an order dismissing claimant's action in that Court and denying his motion for a default judgment therein, allegedly causing claimant to incur monetary damages and suffer emotional distress (Mitchell v New York University, 2014 NY Slip Op 30063 [U] [Sup Ct, New York County, 2014]). It is undisputed that claimant did not file his claim with the Clerk of the Court until November 14, 2016, and did not serve it upon the Attorney General until November 15, 2016, and that no notice of intention to file a claim was ever served upon the Attorney General. The Court notes that, in paragraph 4 of his claim, claimant alleges that his action accrued on October 25, 2016, but he does not specify any injuries arising on that date due to conduct on defendant's part. To the extent that claimant attempts to invoke the "continuing violation" doctrine to extend the date of accrual beyond the entry of Supreme Court's order, said doctrine does not toll the limitations period indefinitely, but must be predicated on continuing unlawful conduct and not on the alleged continuing effects of prior unlawful conduct (see Bullard v State of New York, 307 AD2d 676, 678 [3d Dept 2003]; Selkirk v State of New York, 249 AD2d 818, 819 [3d Dept 1998]). Accordingly, the Court lacks subject matter jurisdiction over the action and defendant's motion to dismiss the claim must be granted (see Vargas v State of New York, 62 AD3d 1170, 1171 [3d Dept 2009]; Pizarro v State of New York, 19 AD3d 891, 892 [3d Dept 2005], lv denied 5 NY3d 717 [2005]).
Furthermore, even if the Court were to apply the continuing violation doctrine to claimant's case and find his claim to be timely, it would nonetheless be dismissed. "Although '[j]urisdiction reposes in the Court of Claims where the essential nature of the claim [against the state] is to recover money, [it does not lie] where monetary relief is incidental to the primary claim'" (Matter of Salahuddin v Connell, 53 AD3d 898, 899 [3d Dept 2008], quoting Guy v State of New York, 18 AD3d 936, 937 [3d Dept 2005]). Thus, "the threshold question is 'whether the essential nature of the claim is to recover money, or whether the monetary relief is incidental to the primary claim'" (Madura v State of New York, 12 AD3d 759, 760 [3d Dept 2004], lv denied 4 NY3d 704 [2005], quoting Matter of Gross v Perales, 72 NY2d 231, 236 [1988]). Here, although claimant contends that "the full liability of the private defendants in [the Supreme Court] matter shifted to the State of New York" (Claimant's Reply Brief, p. 2), it is clear that he primarily is seeking to annul Supreme Court's decision dismissing his petition and denying his motion for default judgment. "Plainly, any monetary recovery would be incidental to that determination," and the Court of Claims does not have jurisdiction to intervene in ongoing supreme court matters or to review judicial rulings made in connection therewith (Hoffman v State of New York, 42 AD3d 641, 642 [3d Dept 2007]; see Madura v State of New York, 12 AD3d at 761; Vasile v State of New York, UID No. 2000-019-535 [Ct Cl, Lebous, J., Sept. 22, 2000]).
For all of the foregoing reasons, the claim before the Court must be dismissed for lack of subject matter jurisdiction (see Maude v New York State Off. of Children & Family Servs., 82 AD3d at 1469; City of New York v State of New York, 46 AD3d 1168, 1169 [3d Dept 2007], lv denied 10 NY3d 705 [2008]; Madura v State of New York, 12 AD3d at 761). In light thereof, claimant's cross motion and the various forms of relief sought therein are rendered moot (see e.g. Green v State of New York, UID No. 2016-038-535 [Ct Cl, DeBow, J., June 1, 2016]).
Accordingly, it is hereby
ORDERED, that defendant's motion number M-89710 is granted, and claim number 128802 is dismissed; and it is further
ORDERED, that claimant's cross motion number CM-89766 is denied as moot.
March 8, 2017
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims Papers Considered: 1. Claim, verified by claimant on November 14, 2016, with attachments. 2. Affirmation in Support of Motion to Dismiss, affirmed by Lawrence E. Kozar, AAG, on December 20, 2016, with exhibit. 3. Reply Brief to Defendant's Pre-Answer Motion to Dismiss, signed by claimant on January 2, 2017, with attachments. 4. Notice of Cross Motion, dated January 2, 2017; Affidavit in Support of Cross Motion, sworn to by claimant on January 2, 2017, with exhibits. 5. Supplemental Documents submitted by claimant on January 4, 2017. 6. Letter from claimant requesting Oral Argument, dated January 17, 2017. 7. Letter from claimant dated February 12, 2017.