Opinion
# 2017-040-065 Claim No. 128640 Motion No. M-90381
06-19-2017
THEODORE KATSANOS v. THE STATE OF NEW YORK
Theodore Katsanos, Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas Trace, Senior Attorney
Synopsis
State's Motion to dismiss Claim granted as the Notice of Intent was not served and the Claim was not served and filed within 90 days of accrual as required by CCA §§ 10(3), (3-b) and 11(a)(i).
Case information
| UID: | 2017-040-065 |
| Claimant(s): | THEODORE KATSANOS |
| Claimant short name: | KATSANOS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128640 |
| Motion number(s): | M-90381 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Theodore Katsanos, Pro Se |
|---|---|
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas Trace, Senior Attorney |
| Third-party defendant's attorney: | |
| Signature date: | June 19, 2017 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, Defendant's 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 Defendant, as a result of Claimant's failure to timely serve the Notice of Intention to File a Claim and the Claim as required by Court of Claims Act §§ 10(3), (3-b) and 11(a)(i), is granted.
This pro se Claim, which was filed with the office of the Clerk of the Court on October 7, 2016, asserts that, following a disciplinary hearing at Gouverneur Correctional Facility that concluded on April 7, 2014, Claimant was found guilty of refusing to supply a urine sample for testing and a penalty, inter alia, of 90 days confinement to the Special Housing Unit (hereinafter, "SHU") was imposed. Claimant was confined to SHU from March 18, 2014 to June 13, 2014. Claimant filed an administrative appeal seeking reversal of the hearing officer's determination. However, the determination was administratively affirmed. Claimant then commenced a proceeding pursuant to CPLR Article 78 in Supreme Court, which was transferred to the Appellate Division, Third Department. By decision dated March 3, 2016, the Third Department annulled the hearing officer's determination and directed the Department of Corrections and Community Supervision to expunge all references to the matter from Claimant's institutional record (Katsanos v Prack, 137 AD3d 1348, 1349 [3d Dept 2016]).
Claimant asserts that his Claim accrued on March 15, 2016, the date of entry of the Appellate Division decision (Claim, ¶ 4). Claimant further asserts that he timely served upon Defendant a Notice of Intention to File a Claim on June 6, 2016 (id., ¶ 5).
Pursuant to the Court of Claims Act provisions applicable to personal injury actions, 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 (to the extent Claimant asserts injuries caused by negligence or unintentional torts) or within one year (to the extent he asserts intentional torts of State employees) (Court of Claims Act §§ 10[3], 10[3-b]). 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]).
In its Answer, filed with the office of the Clerk of the Court on October 21, 2016, Defendant asserted as its Eleventh Affirmative Defense that "[t]his Court lacks subject matter jurisdiction over the [C]laim and personal jurisdiction over the Defendant, as the [C]laim is untimely in that neither the [C]laim nor a [N]otice of [I]ntention was served within ninety (90) days of the accrual(s) of the [C]laim as required by Court of Claims Act § 11 and Court of Claims Act §§ 10 (3) and 10 (3-b)."
In his affirmation submitted in support of the State's motion, Defense counsel asserts that the Claim accrued on June 13, 2014 when Claimant was released from SHU and, thus, a Notice of Intention to File a Claim, or Claim, was required to be served upon Defendant on or before September 11, 2014 (Affirmation of Thomas Trace, Esq., ¶ 4). Counsel further states that Claimant served a Notice of Intention to File a Claim upon Defendant on June 6, 2016, which, the Court notes, is the same date asserted by Claimant in his Claim. That date is well over a year past the deadline (id.). Claimant has not submitted any opposition to Defendant's motion.
A cause of action for wrongful confinement accrues when the restrictive confinement ends (Campos v State of New York, 139 AD3d 1276 [3d Dept 2016]; Matter of Kairis v State of New York, 113 AD3d 942 [3d Dept 2014]; Davis v State of New York, 89 AD3d 1287 [3d Dept 2011]; Santiago v City of Rochester, 19 AD3d 1061 [4th Dept 2005], lv denied 5 NY3d 710 [2005]; Charnis v Shohet, 2 AD3d 663 [2d Dept 2003]). Here, based upon Claimant's statements in the Claim, that date is June 13, 2014. Thus, the ninetieth day after accrual was September 11, 2014 as stated by Defense counsel.
Court of Claims Act § 10 is more than a statute of limitations; it is a jurisdictional prerequisite to bringing and maintaining an action in this Court (Mallory v State of New York, 196 AD2d 925, 926 [3d Dept 1993]; DeMarco v State of New York, 43 AD2d 786 [4th Dept 1973], affd 37 NY2d 735 [1975]; Antoine v State of New York, 103 Misc 2d 664 [Ct Cl 1980]). Failure to timely comply with the statutory service and filing requirements of the Court of Claims Act constitutes a fatal jurisdictional defect requiring dismissal (Lyles v State of New York, 3 NY3d 396, 400-401 [2004]; Buckles v State of New York, 221 NY 418 [1917]; Langner v State of New York, 65 AD3d 780, 781 [3d Dept 2009]; Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]). The Court cannot waive a defect in jurisdiction that has been timely raised (see Thomas v State of New York, 144 AD2d 882 [3d Dept 1988]). The defect asserted was timely and properly raised with particularity in Defendant's verified Answer as set forth above, in accordance with Court of Claims Act § 11(c) (Czynski v State of New York, 53 AD3d 881, 882 [3d Dept 2008], lv denied 11 NY3d 715 [2009]; Villa v State of New York, 228 AD2d 930, 931 [3d Dept 1996], lv denied 88 NY2d 815 [1996]).
Based upon the foregoing, Defendant's Motion is granted and the Claim is dismissed for failure to timely serve and file it in accordance with Court of Claims Act §§ 10(3), (3-b), and 11(a)(i).
The Court notes that, by letter dated May 2, 2017, the parties were notified that the trial of this Claim was scheduled for July 17, 2017 at the Court of Claims in Utica, New York. That trial is now unnecessary.
June 19, 2017
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims The following papers were read and considered by the Court on Defendant's Motion to dismiss: Papers Numbered Notice of Motion, Affirmation, & Exhibits Attached 1 Filed Papers: Claim, Answer