Opinion
# 2015-040-019 Claim No. 123894 Motion No. M-86359 Cross-Motion No. CM-86448
04-27-2015
ANDRE BEALE, 09B0047 v. THE STATE OF NEW YORK
Andre Beale, Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Paul F. Cagino, Esq., AAG
Synopsis
State's motion to dismiss granted as Claimant served Notice of Intent upon Defendant but not a Claim.
Case information
| UID: | 2015-040-019 |
| Claimant(s): | ANDRE BEALE, 09B0047 |
| Claimant short name: | BEALE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | Caption amended to reflect the State of New York as the proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 123894 |
| Motion number(s): | M-86359 |
| Cross-motion number(s): | CM-86448 |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Andre Beale, Pro Se |
|---|---|
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Paul F. Cagino, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | April 27, 2015 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, Claimant's motion for a default judgment is denied and the State's pre-Answer cross-motion to dismiss the Claim pursuant to CPLR 3211(a)(2) and (8), on the basis that the Court lacks subject matter jurisdiction over the Claim and personal jurisdiction over the Defendant as a result of Claimant's failure to serve the Claim as required by Court of Claims Act §§ 10 and 11(a)(i), is granted.
The Claim, which was filed with the Clerk of the Court on February 5, 2014, alleges that Claimant was an inmate at Franklin Correctional Facility located in Malone, New York on December 23, 2013 when he received negligent medical care. It is asserted that a doctor at the facility removed Claimant from his mental health medication. The Claim asserts that Claimant should have been tapered off the medication but, instead, it was completely and abruptly stopped.
The Court will first deal with the State's cross-motion to dismiss. Pursuant to Court of Claims Act § 10(3), the provision applicable to personal injury actions caused by negligence or unintentional torts of State employees, 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. 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]). This is a pre-Answer cross-motion to dismiss.
In his affirmation submitted in support of Defendant's cross-motion, Defense counsel asserts that Claimant failed to serve a Claim upon the Attorney General as required by Court of Claims Act §§ 10(3) and 11(a) (Affirmation of Paul F. Cagino, Esq., ¶ 5). Defendant also submitted an Affidavit of Janet Barringer, a Senior Clerk in the Albany Office of the Attorney General, stating that, upon her thorough search of the records of the New York State Attorney General's office, she found that a document entitled Notice of Intention captioned Beale v State of New York was received by the Attorney General on February 12, 2014 by certified mail, return receipt requested (number 7001 0360 0001 4539 5846) (Barringer Affidavit, ¶ 3[a]). In support of his motion for a default judgment, Claimant asserts that he served "his paperwork of claim" by certified mail, return receipt number 7001 0360 0001 [4539] 5846 (Claimant's Order to Move on Default Judgment), the same article number that the Defendant asserts contained the Notice of Intention. The Court has reviewed the filed Claim and notes that the affidavit of service attached thereto states that Mr. Beale served a Notice of Intention upon the Attorney General by mailing it on January 24, 2014. A copy of the signed return receipt, with the article number referred to above indicating it was received by the Attorney General on February 12, 2014, is also attached. There is no affidavit of service indicating that he served the Claim upon Defendant. Mr. Beale has not submitted any opposition to the State's cross-motion.
Section 11 of the Court of Claims Act constitutes a jurisdictional prerequisite to the institution and maintenance of a claim against the State and, thus, must be strictly construed (Buckles v State of New York, 221 NY 418 [1917]; Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]; Byrne v State of New York, 104 AD2d 782 [2d Dept 1984], appeal denied 64 NY2d 607 [1985]). The Court cannot waive a defect in jurisdiction that has been timely raised (Thomas v State of New York, 144 AD2d 882 [3d Dept 1988]). Here, Defendant raised the defense with particularity in this pre-Answer cross-motion to dismiss. Therefore, the Court concludes that Defendant established that the Claim was not served by Claimant upon the Attorney General as required by Court of Claims Act § 11(a)(i), and the Claim is hereby dismissed without prejudice, however, because it appears that the Notice of Intention was timely and properly served and Claimant's time to timely and properly serve and file a Claim as required by Court of Claims Act §§ 10(3) and 11(a)(i) has not expired.
Claimant's motion for a default judgment is denied as Claimant failed to establish that the Claim was served upon Defendant.
April 27, 2015
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court on Claimant's motion and Defendant's cross-motion:
Papers Numbered
Claimant's "Order to Move on Default Judgment" 1
Notice of Cross-Motion, Affirmation and
Exhibits attached 2
Filed Papers: Claim