Opinion
# 2018-040-042 Claim No. 126983 Motion No. M-91772
05-03-2018
BRIEN LEE 11A5104 v. THE STATE OF NEW YORK
Brien Lee, Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Douglas R. Kemp, Esq., AAG
Synopsis
State's Motion to dismiss the Claim as untimely on the basis that Claimant's Notice of Intent failed to meet the particularity requirement of CCA § 11(b) and, thus, did not extend Claimant's time to serve and file the Claim granted and Claim dismissed.
Case information
| UID: | 2018-040-042 |
| Claimant(s): | BRIEN LEE 11A5104 |
| Claimant short name: | LEE |
| 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): | 126983 |
| Motion number(s): | M-91772 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Brien Lee, Pro Se |
|---|---|
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Douglas R. Kemp, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | May 3, 2018 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, Defendant's Motion to dismiss the pro se Claim on the basis that the Notice of Intention fails to meet the specificity requirements of Court of Claims Act § 11(b) and, thus, did not extend Claimant's time to serve and file the Claim, resulting in the Claim being untimely served and filed pursuant to Court of Claims Act §10, is granted.
Claimant served a Notice of Intention to File a Claim upon Defendant on August 1, 2014 (Ex. A attached to Affirmation in Support of Douglas R. Kemp, Esq., Assistant Attorney General [hereinafter, "Kemp Affirmation in Support"]). The Notice of Intention asserts that the Claim arose at 6:00 p.m. at Bare Hill Correctional Facility (hereinafter, "Bare Hill"), that the nature of the Claim is for negligence, and that the alleged injury is a facial laceration (id.). However, Claimant did not provide either the date that the Claim allegedly accrued, the manner in which he was injured, or how the State was negligent (id.). The Claim was filed with the office of the Clerk of the Court on November 4, 2015 and served upon the Attorney General on November 2, 2015 (Kemp Affirmation in Support, ¶ 5 and Ex. B attached). The Claim asserts that, on June 13, 2014 at approximately 6:35 p.m., Claimant was assaulted by an unknown inmate at Bare Hill as he was walking back to his housing unit from the mess hall (Claim, ¶¶ 3 [b] and 3[c]). The Claim also asserts that Claimant did not receive proper medical care and that his rights under both the State and Federal Constitutions were violated ( id., ¶¶ 2 [b], 3[l], 3[n], and 3[p]).
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. If the Notice of Intention is defective, it does not extend Claimant's time to serve and file the Claim and, thus, the Claim filed with the office of the Clerk of the Court on November 4, 2015 and served upon Defendant on November 2, 2015 would be untimely.
Court of Claims Act § 11(b) requires that, "[t]he claim shall state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and … the total sum claimed" (see Demonstoy v State of New York, 130 AD3d 1337 [3d Dept 2015]). The statute further states that a Notice of Intention to file a claim "shall set forth the same matters except that the items of damage or injuries and the sum claimed need not be stated."
Defendant asserts that the Notice of Intention fails to meet the specificity requirements of Court of Claims Act § 11(b) because it fails to present all the facts, as it does not assert the date the Claim arose, the manner in which Claimant was injured, and does not allege any particular actions taken by Defendant that would constitute negligence (Kemp Affirmation, ¶¶ 9, 10, 11).
It is well established that the failure to satisfy the substantive pleading requirements of Court of Claims Act § 11(b) is a jurisdictional defect that requires dismissal of the Claim (Kolnacki v State of New York, 8 NY3d 277, 280-281 [2007]; Lepkowski v State of New York, 1 NY3d 201, 206-207 [2003]; Czynski v State of New York, 53 AD3d 881, 882-882 [3d Dept 2008], lv denied 11 NY3d 715 [2009]). As stated by the Appellate Division, Third Department in Morra v State of New York (107 AD3d 1115, 1115-1116 [3d Dept 2013]):
Although "absolute exactness" is not required (Heisler v State of New York,78 AD2d 767, 767 [4th Dept] [1980]), the claim must " 'provide a sufficiently detailed description of the particulars of the claim to enable [defendant] to investigate and promptly ascertain the existence and extent of its liability' " (Robin BB. v State of New York, 56 AD3d 932, 932-933 [3d Dept] [2008], quoting Sinski v State of New York, 265 AD2d 319, 319, [2d Dept] [1999]). However, defendant is not required "to ferret out or assemble information that section 11 (b) obligates the claimant to allege" (Lepkowski v State of New York [supra, at 208]). Failure to abide by these pleading requirements constitutes a jurisdictional defect mandating dismissal of the claim, even though this may be a harsh result (see Kolnacki v State of New York, [supra] at 281; Dinerman v NYS Lottery, 69 AD3d 1145, 1146 [3d Dept] [2010], lv dismissed 15 NY3d 911 [2010]).
Here, the Court concludes that Claimant's Notice of Intention fails to fulfill the substantive pleading requirements of a claim as provided in Court of Claims Act §11(b). The Notice of Intention failed to set forth the date of the incident, the manner in which he was injured, or the factual basis underlying Claimant's conclusory assertion of negligence, which is the only cause of action asserted in the Notice of Intention.
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 in the office of the Clerk of the Court on December 11, 2015, Defendant asserted as its First Affirmative Defense that "[t]he [N]otice of [I]ntention is insufficient to extend the time for filing and serving the [C]laim in that it fails to comply with Section 11of the Court of Claims Act by failing to state the specific time when and date of the accrual of the cause of action and, therefore, there is no proper [C]laim over which the Court has jurisdiction." Defendant further asserts as its Fourth Affirmative Defense that "[t]he [N]otice of [I]ntention is insufficient to extend the time for filing and serving the [C]laim in that it fails to comply with Section 11of the Court of Claims Act by failing to include any particularization of the nature of the cause of action and the [D]efendant's conduct in regard to it and, therefore, there is no proper [C]laim over which the Court has jurisdiction."
Claimant did not submit any papers in opposition to the State's Motion to Dismiss. The Court finds that Defendant has raised the defenses with the requisite particularity to satisfy Court of Claims Act § 11(c) (Czynski v State of New York, 16 Misc 3d 465, 469 [Ct Cl 2007], affd 53 AD3d 881, 882 [3d 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]).
As the Court finds that the Notice of Intention fails to satisfy the pleading requirements of Court of Claims Act § 11(b), it did not extend Claimant's time to serve and file the Claim (Langner v State of New York, 65 AD3d 780, 782 [3d Dept 2009], citing Czynski v State of New York, supra at 883). Thus, the Claim filed with the Clerk of the Court on November 4, 2015 and served upon Defendant on November 2, 2015 is untimely (Court of Claims Act §§ 10[3], 10[3][b]) and Defendant's Motion to dismiss the Claim is granted.
May 3, 2018
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 the Claim: Papers Numbered Notice of Motion, Affirmation in Support & Exhibits Attached 1 Filed Papers: Claim, Answer