Opinion
# 2013-018-438 Claim No. 122696 Motion No. M-83711 Cross-Motion No. CM-83942
09-19-2013
MICHELLE WEE v. STATE OF NEW YORK
Synopsis
Claim No. 122696 is dismissed, and Claimant is granted permission to file a late claim.
Case information
UID: 2013-018-438 Claimant(s): MICHELLE WEE Claimant short WEE name: Footnote (claimant name) : Defendant(s): STATE OF NEW YORK Footnote (defendant The Court has amended the caption sua sponte to reflect the name) : State of New York as the only proper Defendant. Third-party claimant(s): Third-party defendant(s): Claim number(s): 122696 Motion number(s): M-83711 Cross-motion number CM-83942 (s): Judge: DIANE L. FITZPATRICK Claimant's JAMES B. FLECKENSTEIN, ESQUIRE attorney: Defendant's SLIWA & LANE attorney: By: Kevin A. Lane, Esquire Third-party defendant's attorney: Signature date: September 19, 2013 City: Syracuse Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant brings a motion to dismiss Defendant's affirmative defenses or, in the alternative, to be granted permission to file a late notice of intention and claim. Defendant opposes the motion and makes a cross motion to dismiss the claim.
On November 29, 2012, Claimant mailed, by ordinary mail, a notice of intention to file claim to the New York State Attorney General at the Syracuse Office. On May 3, 2013, Claimant served by certified mail, return receipt requested, a notice of claim upon the Attorney General seeking damages for Claimant's personal injuries incurred when, on September 1, 2012, in her student dorm room on the campus of the State University of New York (SUNY) at Oswego, the window blinds fell on her head when she attempted to adjust them. On June 6, 2013, Defendant interposed an answer to the claim asserting 11 affirmative defenses. The Defendant raises with particularity that the claim was not timely served in accordance with Court of Claims Act § 10 (3) and that the notice of intention to file a claim was not properly served as required by the provisions of Court of Claims Act § 11 (a) (i).
Motion and Cross Motion to Dismiss
Claimant brings a motion to dismiss Defendant's first through fifth affirmative defenses. The Court may dismiss an affirmative defense if no defense is stated or if the defense has no merit (see CPLR 3211 [b]). Defendant brings a cross motion to dismiss the claim because it is untimely under Court of Claims Act § 10 (3), and the notice of intention to file a claim was not properly served in accordance with Court of Claims Act § 11 (a) (i) and, therefore, did not extend Claimant's time to timely serve the claim.
The claim accrued on September 1, 2012, the date Claimant was injured when the window blinds fell upon her. Pursuant to Court of Claims Act § 10 (3) she had 90 days from that date to serve a notice of intention to file a claim upon the Attorney General or to serve and file a claim. If a notice of intention to file a claim is timely and properly served, Claimant then has two years from the date of accrual to file and serve the claim (Court of Claims Act § 10 [3]).
Here, Claimant served a notice of intention to file a claim upon the Attorney General on November 28, 2012, within 90 days of the date of accrual. However, the notice of intention was served by regular mail. Court of Claims Act § 11 (a) (i) specifies the methods of acceptable service upon the attorney general: certified mail, return receipt requested, or personal service. The State has conditioned its waiver of sovereign immunity on strict compliance with the statutory framework in the Court of Claims Act, and both the requirements for filing and service in Court of Claims Act §§ 10 and 11 must be met in order to commence an action against the State of New York (see Long v State of New York, 7 NY3d 269, 276 [2006], quotingLichtenstein v State of New York, 93 NY2d 911, 913 [1999]). It is well-established that those requirements must be strictly construed and the failure to comply with them is a jurisdictional defect (Byrne v State of New York, 104 AD2d 782, 783 [2d Dept 1984], lv denied 64 NY2d 607 [1985]). The Court does not have the discretion to disregard the defect where properly raised (Diaz v State of New York, 174 Misc 2d 63, 64 [Ct Cl 1997]).
Here, Defendant correctly argues that the notice of intention served upon the Attorney General by regular mail was not properly served and, as a result, did not extend Claimant's time for filing and serving a timely claim. Service by regular mail is not service sufficient to commence an action in this Court (see Fulton v State of New York, 35AD3d 977, 978 [3d Dept 2006], lv denied 8 NY3d 809 [2007] ["claimant's service of the claim via ordinary mail was a nullity"]; Bogel v State, 175 AD2d 493, 494 [3d Dept 1991] ["[s]ervice of the claims upon the Attorney-General by ordinary mail was insufficient to acquire jurisdiction over the State and they were therefore properly dismissed"]).
Accordingly, Claimant's motion to dismiss Defendant's first through fifth affirmative defenses is DENIED and Defendant's cross motion to dismiss the claim must be GRANTED and the claim DISMISSED.
Claimant's Motion to File a Late Notice of Intention to File a Claim and Claim
Claimant also seeks permission to late file both a notice of intention to file a claim and claim. Court of Claims Act § 10 (6) authorizes a proposed claimant who has failed to timely file and serve a claim or serve a notice of intention to submit an application to file a proposed claim which complies with section 11 of the Court of Claims Act, at any time before an action asserting a like claim against a citizen of the State would be barred under the provisions of article two of the CPLR (Court of Claims Act § 10 [6]). The Court, in its discretion, may permit the late filing of the proposed claim after consideration is given to the six factors listed in the statute. No one factor is determinative (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys., Policemen's & Firemen's Retirement Sys., 55 NY2d 979 [1982]; Ledet v State of New York, 207 AD2d 965 [4th Dept 1994]). There is no authority for the Court to grant permission to late serve a notice of intention to file a claim. Accordingly, the Court will address this as a timely late claim application (see Court of Claims Act § 10 [6], CPLR 214 [5]).
Claimant acknowledges that she has no viable excuse for failing to timely file and serve a claim in this matter. Instead, Claimant argues that the next three factors weigh in her favor, as the State had timely and adequate notice of the facts underlying the claim, which provided the State with the opportunity to timely investigate and, therefore, there will be no substantial prejudice if the Court grants this application. The Court agrees.
Immediately after the incident, Claimant notified various employees of the State at SUNY Oswego, completed and filed incident/accident reports, and a work request was made to fix the window blinds. These timely and informative communications with SUNY Oswego personnel provided adequate notice to the State and an opportunity to investigate. Accordingly, the Court finds these factors weigh in favor of granting Claimant's application.
The next factor is whether there is reasonable cause to believe that the proposed claim has the appearance of merit. Unlike a party who has timely filed a claim, one seeking permission to file a late claim has the heavier burden of demonstrating that the proposed claim appears to be meritorious (see Nyberg v State of New York, 154 Misc 2d 199 [Ct Cl 1992]). Generally, a proposed claim meets this standard if it is not patently groundless, frivolous, or legally defective, and upon consideration of the entire record, there is cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]).
Claimant has met the minimal burden to show that the proposed claim has potential merit. Accordingly, the Court finds this factor weighs in favor of her application.
The final factor is whether Claimant has any other remedy. There is no indication that Claimant has any other remedy based upon the facts as set forth.
Accordingly, the portion of Claimant's motion seeking permission to file and serve the proposed late claim is hereby GRANTED. Claimant is directed to file and serve the proposed claim and pay the required fee or submit the appropriate application in accordance with Court of Claims Act 11-a within 30 days of the date this Decision and Order is filed with the Clerk of this Court. Filing and service of the claim should be in accordance with all applicable statutory requirements and Court rules.
September 19, 2013
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims
The Court has considered the following documents in deciding these motions:
M-83711
1) Notice of Motion.
2) Affidavit of Michelle Wee, sworn to July 1, 2013, in support, with exhibits attached thereto.
3) Affirmation of James B. Fleckenstein, Esquire, in support, with exhibits attached thereto.
4) Affirmation of Michelle Rudderow, Esquire, in support, with exhibits attached thereto.
5) Memorandum of Law dated July 9, 2013.
CM-83942
6) Notice of Cross Motion.
7) Affidavit of Kevin A. Lane, Esquire, sworn to August 27, 2013, in support of Defendant's cross motion, and in opposition to Claimant's motion.
8) Reply affirmation of James B. Fleckenstein, Esquire, in opposition.