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Ahlers v. State

New York State Court of Claims
Mar 30, 2015
# 2015-048-172 (N.Y. Ct. Cl. Mar. 30, 2015)

Opinion

# 2015-048-172 Claim No. 124760 Motion No. M-85919

03-30-2015

KARL AHLERS v. THE STATE OF NEW YORK

KARL AHLERS, Pro Se HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas Trace, Esq. Senior Attorney


Synopsis

The Court granted Defendant's Motion to to dismiss the Claim as untimely, thereby divesting the Court of subject matter jurisdiction over the Claim.

Case information


UID:

2015-048-172

Claimant(s):

KARL AHLERS

Claimant short name:

AHLERS

Footnote (claimant name) :

Defendant(s):

THE STATE OF NEW YORK

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

124760

Motion number(s):

M-85919

Cross-motion number(s):

Judge:

GLEN T. BRUENING

Claimant's attorney:

KARL AHLERS, Pro Se

Defendant's attorney:

HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas Trace, Esq. Senior Attorney

Third-party defendant's attorney:

Signature date:

March 30, 2015

City:

Albany

Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Claimant, Karl Ahlers, commenced this action to recover, among other things, the value of a footlocker alleged to have been damaged while he was a resident at the Central New York Psychiatric Center (CNYPC) located in Marcy, New York. Specifically, Claimant alleges that on August 13, 2013, staff claimed that his assigned footlocker was damaged and that, on November 18, 2013, to avoid the loss of certain facility privileges, Claimant was forced to remit $24.00 to Defendant to cover the costs of the damaged footlocker. Defendant now moves for an order dismissing the Claim pursuant to CPLR §§ 3211 (a) (2) and (8), for lack of personal and subject matter jurisdiction based on Claimant's failure to timely file and serve the Claim or timely serve a Notice of Intention to File a Claim (Notice of Intention), pursuant to Court of Claims Act §§ 10 and 11. Claimant opposes the motion.

Whether characterized as a Claim seeking money damages for an intentional tort or an unintentional tort, Court of Claims Act § 11 (a) (i) mandates that a copy of the Claim be served personally or by certified mail, return receipt requested, upon the Attorney General within the applicable time period provided in section 10 of the Court of Claims Act.

Court of Claims Act § 10 (3) mandates that

[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 ninety 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, in which event the claim shall be filed and served upon the attorney general within two years after the accrual of such claim.

Court of Claims Act § 10 (3-b) mandates that

[a] claim to recover damages for injuries to property or for personal injuries caused by the intentional 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 ninety 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, in which event the claim shall be filed and served upon the attorney general within one year after the accrual of such claim.

Failure to comply with these statutory filing and service requirements "deprives the Court of Claims of subject matter jurisdiction and compels dismissal of the claim" (Maude V. v New York State Off. of Children & Family Servs., 82 AD3d 1468, 1469 [3d Dept 2011]; see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]). However, any objection or defense based on a Claimant's failure to comply with the time limitations set forth in Section 10 of the Court of Claims Act is waived unless specifically raised in the answer or in a pre-answer motion to dismiss (see Court of Claims Act § 11 [c] [i]).

Here, the submissions on Defendant's motion establish that, on July 28, 2014, a Claim was filed with the Clerk of the Court of Claims. The Claim was served on the Attorney General Office by certified mail, return receipt requested on July 28, 2014 (see Affirmation of Thomas Trace, Esq., ¶ 2). The submissions attached to the Claim also indicate that, with the Claim, a Notice of Intention was mailed to the Attorney General's office (see Affidavit of Service attached to the Claim).

In support of its motion, Defendant contends that the Claim was not served on the Attorney General within 90 days of accrual of the cause of action, thus divesting the Court of subject matter jurisdiction of the Claim and personal jurisdiction over Defendant. Claimant does not dispute the factual allegations raised in Defendant's motion, but contends that the action was timely commenced.

Initially, the Court notes that Defendant preserved its objection to the timeliness of service through the instant motion. In addressing the substance of Defendant's motion, whether characterized as an intentional tort for money paid as a result of coercion or duress, or whether characterized as a claim for negligence or due process violations as referenced in the Claim, Claimant was required to either serve a Notice of Intention or to file and serve a Claim within 90 days of accrual. Claimant's cause of action is alleged to have accrued, at the latest, on November 18, 2013, the date when Claimant was compelled to make payment. Thus, Claimant had until Monday, February 17, 2014 (see General Construction Law § 25-a [1]) to either serve a Notice of Intention or to serve and file a Claim. While a Notice of Intention is referenced as having been served with the Claim, any such Notice was served beyond the 90 days within which the Notice was required to be served, and thus, did not operate to extend the time within which Claimant was required to file and serve the Claim. Based on the foregoing, the Court concludes that the Claim, filed July 28, 2014, is untimely, thereby divesting the Court of subject matter jurisdiction over the Claim (see Alston v State of New York, 97 NY2d 159, 163 [2001]). Accordingly, Defendant's Motion No. M-85919 is granted and the Claim is dismissed.

March 30, 2015

Albany, New York

GLEN T. BRUENING

Judge of the Court of Claims

The following papers were read and considered by the Court:

Claim, filed July 28, 2014, with attachments;

Notice of Motion, filed August 25, 2014;

Affirmation of Thomas Trace, Esq., dated August 25, 2014, with Exhibit A;

Claimant's Reply to Notice of Motion to Dismiss Claim, with attached Affidavit, sworn to on September 17, 2014.


Summaries of

Ahlers v. State

New York State Court of Claims
Mar 30, 2015
# 2015-048-172 (N.Y. Ct. Cl. Mar. 30, 2015)
Case details for

Ahlers v. State

Case Details

Full title:KARL AHLERS v. THE STATE OF NEW YORK

Court:New York State Court of Claims

Date published: Mar 30, 2015

Citations

# 2015-048-172 (N.Y. Ct. Cl. Mar. 30, 2015)