Opinion
# 2013-018-405 Claim No. 111104 Motion No. M-82774
01-14-2013
PAUL FLANDERS, Executor of the Estate of PAULA FLANDERS v. STATE OF NEW YORK
Synopsis
The Court finds that the claim was served by regular mail on June 30, 2005, and the State's failure to bring a pre-answer motion to dismiss for improper service, or to object to the manner of service in its answer, has waived that objection and under the Court of Claims Act § 11 (c) the claim may not be dismissed. Defendant's motion is DENIED. Case information
UID: 2013-018-405 Claimant(s): PAUL FLANDERS, Executor of the Estate of PAULA FLANDERS Claimant short name: Flanders Footnote (claimant name) : Defendant(s): STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 111104 Motion number(s): M-82774 Cross-motion number(s): Judge: DIANE L. FITZPATRICK LONGSTREET & BERRY, LLP Claimant's attorney: By: Michael Longstreet, Esquire HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York Defendant's attorney: By: Ed J. Thompson, Esquire Assistant Attorney General Third-party defendant's attorney: Signature date: January 14, 2013 City: Syracuse Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Defendant brings a motion to dismiss the wrongful death cause of action for failure to timely serve a claim within the statute of limitations or Court of Claims Act § 10 (2). Claimant opposes the motion. This case is currently scheduled for trial to begin on February 4, 2013.
This claim arises out of a motor vehicle accident which occurred on July 8, 2003 on eastbound State Route 690, just east of the Bridge Street overpass in the Town of DeWitt. Claimant alleges that the State was negligent in its design, maintenance, and improvements of Route 690 which proximately caused Decedent's death. The claim seeks damages for the pain and suffering and wrongful death of Decedent, who died on July 8, 2003.
Claimant served upon the Attorney General a timely notice of intention to file a claim by certified mail, return receipt requested, on September 16, 2003. On July 5, 2005, Claimant filed a copy of the claim with the Clerk of the Court of Claims. On September 7, 2005, Claimant personally served a copy of the claim upon an Assistant Attorney General. On October 17, 2005, Defendant interposed an answer to the claim asserting eight affirmative defenses; the answer was filed with the Clerk of the Court on October 19, 2005. Defendant's Seventh Affirmative Defense alleges: "[t]he cause of action for wrongful death is barred by the applicable statute of limitations." No defense was raised asserting untimeliness or improper service under the Court of Claims Act.
Defendant, in its motion papers, asserts that the claim was served by personal service beyond the two-year statute of limitations, the statute of limitations defense was properly raised, and as a result, the claim must be dismissed. Claimant, in response, has raised issue with the date of service of the claim, by asserting that it was served by regular mail on June 30, 2005. The original affidavit of service received in the Clerk's Office on July 5, 2005 with the filed claim, indicates that a claim was served by regular mail upon the Attorney General on June 30, 2005. The affidavit of service provides that Jaime L. Thayer, who is not a party, is over the age of 18, and resides in Syracuse, New York served the Claim on the Attorney General of the State of New York by mail at the Department of Law, The Capitol, Albany, New York 12224, on June 30, 2005. The affidavit of service is notarized the same day. A copy of the affidavit of service is attached to Defendant's motion papers as Exhibit B, and the original of this affidavit of service is filed in the Clerk's Office.
Defendant, in reply, asserts that it never received a copy of the claim by regular mail. The reply is provided by the affirmation of the Assistant Attorney General. No affidavit from any one with personal knowledge of the processing of claims received in the Albany office of the Attorney General, to whom the claim was mailed, was provided.
Undisputedly, service of a claim by regular mail upon the attorney general is not proper service under the Court of Claims Act § 11 (see Govan v State of New York, 301 AD2d 757 [3d Dept 2003]; Spaight v State of New York, 91 AD3d 995 [3d Dept 2012]). Such a defect in service can deprive the Court of subject matter jurisdiction, but since July 18, 1990, only where a defect in the manner of service requirements set forth in subdivision 11(a) is raised with particularity either by a motion to dismiss before service of a responsive pleading or in the responsive pleading (Court of Claims Act § 11 (c), as amended by L 1990, ch 625; Thomas v State of New York, 144 AD2d 882 [3d Dept 1988]; Sinacore v State of New York, 176 Misc 2d 1 [Ct Cl 1998]).If the issue is not raised, any defect in the manner of service is waived and the statute precludes the Court from dismissing the claim (Court of Claims Act § 11 (c); Knight v State of New York, 177 Misc 2d 181 [Ct Cl 1998]). Where the defendant has not been served at all, the defect is not with the manner of service, but with receipt of any claim at all and, thus, there would be no opportunity to move or raise any affirmative defense (Dunn v State of New York, UID No. 2000-005-556 [Ct Cl, Corbett, J., Sept. 20, 2000]).
Given the language of the statute, Defendant's assertion that the failure to properly serve a claim (the manner of service) makes the claim a nullity is incorrect and to the extent can be read otherwise it should not be relied upon (although it is not clear from that decision that waiver was at issue) (Stacchini v State of New York, UID No. 2002-018-142 [Ct Cl, Fitzpatrick J., June 4, 2002, Claim No. 104879, Motion No. M-64456]).
Here then, the critical question is whether Claimant served a claim upon the Defendant on June 30, 2005. The Court has before it an original affidavit containing proper proof of service. Such an affidavit is prima facie evidence of the service (CPLR 4531). Although I do not, in any way, doubt that the Assistant Attorney General who submitted a reply did not receive a copy of the claim, nor is he personally aware of anyone at the Attorney General's office who did, he does not claim to have personal knowledge of what was received in the Albany office. Without a sworn denial of receipt from someone with knowledge of how mailed claims are received and processed at the Albany office of the Attorney General where the affidavit of service indicates that the claim was mailed, there is insufficient proof to rebut the affidavit of service (see Nasatir v Lenox Hill Hosp., 236 AD2d 213, 214 [1st Dept 1997]; Lincoln First Bank-Cent. N. A. v Bombard Chevrolet, 55 AD2d 1048 [4th Dept 1977]; cf. Van Ness v New York State Dept. of Corrections, UID No. 2012-049-060 [Ct Cl, Weinstein, J., Nov. 21, 2012]).
Based upon this, the Court finds that the claim was served by regular mail on June 30, 2005, and the State's failure to bring a pre-answer motion to dismiss for improper service, or to object to the manner of service in its answer, has waived that objection and under the Court of Claims Act § 11 (c) the claim may not be dismissed.
Accordingly, Defendant's motion is DENIED.
January 14, 2013
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims
The Court has considered the following in deciding this motion:
1) Notice of Motion.
2) Affirmation of Ed J. Thompson, Esquire, in support with exhibits attached thereto.
3) Affirmation of Michael Longstreet, Esquire, in opposition.
4) Memorandum of Law in Opposition to Respondent's [sic] Motion to Dismiss Claim.
5) Reply Affirmation of Ed J. Thompson, in support.