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Davenport v. State

New York State Court of Claims
Jan 14, 2015
# 2015-015-038 (N.Y. Ct. Cl. Jan. 14, 2015)

Opinion

# 2015-015-038 Claim No. 121337 Motion No. M-85737

01-14-2015

DARRELL DAVENPORT v. THE STATE OF NEW YORK

Darrell Davenport, Pro Se Honorable Eric T. Schneiderman, Attorney General By: Terrance K. DeRosa, Esquire Assistant Attorney General


Synopsis

Claim was dismissed for improper service.

Case information

UID:

2015-015-038

Claimant(s):

DARRELL DAVENPORT

Claimant short name:

DAVENPORT

Footnote (claimant name) :

Defendant(s):

THE STATE OF NEW YORK

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

121337

Motion number(s):

M-85737

Cross-motion number(s):

Judge:

FRANCIS T. COLLINS

Claimant's attorney:

Darrell Davenport, Pro Se

Defendant's attorney:

Honorable Eric T. Schneiderman, Attorney General By: Terrance K. DeRosa, Esquire Assistant Attorney General

Third-party defendant's attorney:

Signature date:

January 14, 2015

City:

Saratoga Springs

Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Defendant moves to dismiss the instant claim pursuant to CPLR 3211 (a) (2) and (7) on the ground the claim was not served upon the Attorney General as required by Court of Claims Act § 11 (a) (i).

On May 21, 2012 claimant, an inmate proceeding pro se, filed a claim alleging he was prescribed Risperdal in 2006 and was continued on the medication at increasing dosages until August 2, 2010 when signs of tardive dyskinesia were observed and the prescription was terminated.


Tardive dyskinesia is "an irreversible neurological disorder characterized by involuntary, rhythmic and grotesque movements of the face, mouth, tongue, jaw and extremities" ( Rivers v Katz, 67 NY2d 485, 490, n 1).

Whether claimant seeks to premise liability on the theory that Risperdal was improperly prescribed or administered, or that he was not informed of the possible side effects before the medication was prescribed, is unclear.

In support of its dismissal motion, defendant submitted an affidavit from Min Chul Rhee, a clerk in the Claims Bureau of the New York City Office of the Attorney General. Ms. Rhee avers she searched the computer filing system of the Attorney General's office and found no record that the claim herein was served upon the Attorney General. Rather, the Attorney General's office received a notice of intention to file a claim by certified mail, return receipt requested, on March 19, 2012, a letter from the Office of the Clerk of the Court of Claims on May 21, 2012 acknowledging receipt of a filed claim, and a notice of motion on June 22, 2012 (see defendant's Exhibit D).

The law is clear that the State's waiver of immunity under section 8 of the Court of Claims Act is contingent upon claimant's compliance with the specific conditions to suit set forth in article II of the Court of Claims Act (Lepkowski v State of New York, 1 NY3d 201, 206 [2003]). Among these conditions is Court of Claims Act § 11 (a) (i) which provides, in relevant part, that a copy of the claim "shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for filing with the clerk of the court." The failure to serve a claim upon the Attorney General is a non-waivable jurisdictional defect which divests this Court of subject matter jurisdiction (Finnerty v New York State Thruway Auth., 75 NY2d 721, 723 [1989]; Caci v State of New York, 107 AD3d 1121 [3d Dept 2013]; Johnson v State of New York, 71 AD3d 1355, 1355 [3d Dept 2010], lv denied 15 NY3d 703 [2010]; Court of Claims Act § 11 [c] [ii]). Defendant established in support of its motion that no claim was served upon the Attorney General.

In a letter to the Court dated September 30, 2014, claimant does not dispute the lack of service on the Attorney General and requests permission to file a late claim. Inasmuch as it is undisputed that the instant claim was not served upon the Attorney General, the claim must be dismissed. Notably, claimant's letter-request for late claim relief does not appear to have been served upon the Attorney General's Office and addresses none of the statutory factors required to be considered on a late claim motion (see Court of Claims Act § 10 [6]). Moreover, even if the claim accrued on August 2, 2010 when the prescription for Risperdal ended, late claim relief is barred by the statute of limitations applicable to like claims against a citizen of the State (Court of Claims Act § 10 [6]; CPLR 214-a).

Accordingly, the defendant's motion is granted and the claim is dismissed.

January 14, 2015

Saratoga Springs, New York

FRANCIS T. COLLINS

Judge of the Court of Claims

The Court considered the following papers:

Notice of motion dated September 2, 2014;

Affirmation of Terrance K. DeRosa dated September 2, 2014 with exhibits;

Letter reply of Darrell Davenport dated September 30, 2014.


Summaries of

Davenport v. State

New York State Court of Claims
Jan 14, 2015
# 2015-015-038 (N.Y. Ct. Cl. Jan. 14, 2015)
Case details for

Davenport v. State

Case Details

Full title:DARRELL DAVENPORT v. THE STATE OF NEW YORK

Court:New York State Court of Claims

Date published: Jan 14, 2015

Citations

# 2015-015-038 (N.Y. Ct. Cl. Jan. 14, 2015)