Opinion
# 2017-053-555 Claim No. 127685 Motion No. M-89918 Motion No. M-90823
09-19-2017
OMAR JAMES v. STATE OF NEW YORK O.M.H and CONEY ISLAND MEDICAL CENTER
OMAR JAMES, Pro Se HON. ERIC T. SCHNEIDERMAN New York State Attorney General BY: Joseph Tipaldo, Esq. Assistant Attorney General
Synopsis
In response to the Court's Order to Show Cause as to whether service was accomplished in compliance with the Court of Claims Act, the State filed a pre-answer motion to dismiss. Claimant failed to respond to the Order to Show Cause or to the State's motion. Claimant's failure to comply with the service requirements of the Court of Claims Act deprives the Court of jurisdiction requiring dismissal of the claim. This Court does not have jurisdiction over defendant Coney Island Hospital. The entire claim is dismissed.
Case information
| UID: | 2017-053-555 |
| Claimant(s): | OMAR JAMES |
| Claimant short name: | JAMES |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK O.M.H and CONEY ISLAND MEDICAL CENTER |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 127685 |
| Motion number(s): | M-89918, M-90823 |
| Cross-motion number(s): | |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | OMAR JAMES, Pro Se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General BY: Joseph Tipaldo, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | September 19, 2017 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
On March 21, 2016, pro se claimant Omar James filed claim no. 127685 alleging that the State of New York and the Office of Mental Hygiene misdiagnosed his condition while he was a patient at "Coney Island Medical Center" (presumably referring to Coney Island Hospital) in 2004, resulting in mental, psychological and physical damages. No answer to the claim was filed, thereby raising questions regarding the service of the claim upon the Attorney General. By Order to Show Cause dated February 7, 2017 (motion no. M-89918), this Court ordered the parties to submit statements regarding the service of claim no. 127685 in compliance with the Court of Claims Act.
In order to commence a negligence or medical malpractice action against the State of New York in the Court of Claims, a claim must be filed and a copy served personally or by certified mail, return receipt requested, upon the Attorney General within ninety (90) days of accrual of the claim, unless within the same time period a notice of intention to file a claim is served, in which event the claim must be filed and served within two years of accrual (Court of Claims Act §§ 10 [3] and 11 [a] [i]). The service requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Dreger v New York State Thruway Auth., 81 NY2d 721 [1992]; Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]). The failure to serve a notice of intention or a copy of the claim upon the Attorney General within the ninety (90) day time limitation deprives the court of jurisdiction requiring dismissal of the claim (Torres v State of New York, 107 AD3d 1471 [4th Dept 2013]; Byrne v State of New York, 104 AD2d 782 [2d Dept 1984], lv denied 64 NY2d 607 [1985]).
Pro se claimant Omar James failed to respond to the Court's Order to Show Cause. A letter to the claimant from the Clerk of the Court of Claims enclosing a copy of the Court's Order to Show Cause was mailed to the claimant at his address of record with the Court of Claims on February 16, 2017. The fact that the claimant did not respond to the Court's Order to Show Cause does not prevent the Court from dismissing the claim. Pursuant to the Uniform Rules for the Court of Claims § 206.6 (f), any change of address of a pro se claimant must be communicated in writing to the Clerk of the Court of Claims within ten (10) days.
Attached to claim no. 127685 as filed is an affidavit of service dated January 12, 2016. This affidavit is somewhat confusing. In the first paragraph of the affidavit it is indicated that the claimant had served "affidavits of service." In the second paragraph of the affidavit, it appears as if the claimant was trying to attest that he had served a claim upon the Attorney General. Also attached to claim no. 127685 as filed is a copy of an unsigned certified mail receipt. It is believed, however, that this affidavit of service and unsigned certified mail receipt were actually referring to service of claim no. 127293, an identical claim which was filed by the claimant with the Court of Claims on December 31, 2015 and served on the Office of the Attorney General on January 20, 2016. As will be more fully discussed below, identical claim no. 127293 was dismissed by the Hon. Thomas H. Scuccimarra by a Decision and Order filed July 20, 2016 (see Defendant's Exhibit D).
In response to this Court's Order to Show Cause regarding service of claim no. 127685, defendant filed a pre-answer motion to dismiss the claim. Claimant failed to respond to the State's motion to dismiss. Attached to this motion is an affidavit of Cynthia Watson, Office Assistant 2 of the Claims Bureau of the Office of the Attorney General, who avers that she conducted a search of the computer filing system and there was no evidence that a claim under claim no. 127685 was served on the Attorney General. Also attached to defendant's motion to dismiss is a copy of defendant's earlier motion to dismiss identical claim no. 127293, a copy of claim no. 127293 and a copy of Judge Scuccimarra's Decision and Order dismissing identical claim no. 127293. A comparison of dismissed claim no. 127293 and the present claim no. 127685 reveals that they are identical. In addition, the affidavit of service and the unsigned certified mail receipt attached to claim no. 127685 is identical to the affidavit of service and certified mail receipt attached to the dismissed claim no. 127293. While it appears that dismissed claim no 127293 may have been served on the Attorney General on January 20, 2016 (Defendant's Exhibit C), it does not appear that the present claim no. 127685 (Defendant's Exhibit A) was ever served. Page two of claimant's dismissed claim no. 127293 (Defendant's Exhibit C) and page two of the subject claim no. 127685 (Defendant's Exhibit A) indicate that a notice of intention to file a claim was served on January 12, 2016. Nothing in the affidavit of Cynthia Watson indicates whether or not a notice of intention was served on the Attorney General. However, even if it had, it would have been untimely served. All of the allegations in dismissed claim no. 127293 as well as the allegations in the present claim no. 127685 all refer to an alleged misdiagnosis and treatment claimant received in 2004 while a patient at Coney Island Hospital. A notice of intention to file a claim, like a claim, must be served upon the Attorney General within ninety (90) days of accrual of the claim (Court of Claims Act § 10 [3]). Thus, even if claim no. 127685 and/or a notice of intention had been served on the Attorney General in 2016, twelve (12) years after the claim accrued, such service would have been untimely, requiring dismissal of the claim.
Finally, if the entity claimant intends to hold accountable is Coney Island Hospital, then this Court does not have subject matter jurisdiction. The Court of Claims is a court of limited jurisdiction with authority to hear claims against the State of New York and against certain public authorities, not implicated herein (Court of Claims Act § 9). Coney Island Hospital is owned and operated by the New York City Health and Hospitals Corporation (Ramos v Rakhmanchik, 48 AD3d 657 [2d Dept 2008]), an entity over which this court does not have jurisdiction (see James v State of New York and Coney Island Medical Center [Defendant's Exhibit D]). Accordingly, it is hereby
ORDERED, that with respect to the Order to Show Cause, motion no. M-89918, the claimant's failure to comply with the service requirements of the Court of Claims Act deprives the Court of jurisdiction, requiring dismissal of the claim; and it is further
ORDERED, that defendant's motion to dismiss claim no. 127685, motion no. M-90823, is granted as neither a notice of intention or claim was served within the ninety (90) day statutory period required by the Court of Claims Act and as this Court does not have jurisdiction over the Coney Island Hospital. Claim no. 127685 is dismissed in all respects.
September 19, 2017
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims The following were read and considered by the Court: 1. Order to Show Cause dated February 7, 2017 (Motion no. M-89918); 2. Defendant's notice of motion and affirmation of Assistant Attorney General Joseph Tipaldo dated July 17, 2017, with annexed Exhibits A-D.