Opinion
# 2013-009-039 Claim No. 114335 Motion No. M-83713
11-25-2013
RUSSELL LONG v. THE STATE OF NEW YORK
Claimant's attorney: RUSSELL LONG, PRO SE Defendant's attorney: HON. ERIC T. SCHNEIDERMAN Attorney General BY: Thomas M. Trace, Esq., Senior Attorney Of Counsel.
Synopsis
Defendant's motion to dismiss the claim on the basis that it was not served or filed within the time period required by an order granting him late claim relief was granted. The Court determined that it did not have any discretionary authority to grant an extension of time to comply with its prior Order since the cause of action was not time-barred.
Case information
UID: 2013-009-039 Claimant(s): RUSSELL LONG Claimant short name: LONG Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 114335 Motion number(s): M-83713 Cross-motion number(s): Judge: NICHOLAS V. MIDEY JR. Claimant's attorney: RUSSELL LONG, PRO SE HON. ERIC T. SCHNEIDERMAN Attorney General Defendant's attorney: BY: Thomas M. Trace, Esq., Senior Attorney Of Counsel. Third-party defendant's attorney: Signature date: November 25, 2013 City: Syracuse Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Defendant has brought this motion seeking to dismiss the claim pursuant to CPLR 3211 (a) (2) and (8) on the basis that the Court lacks personal jurisdiction over the defendant and subject matter jurisdiction over the claim.
The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation in Support, with Exhibits 1, 2
Letter Response from Claimant, dated July 8, 2013 3
"Rebuttal to Defendant's Motion to Dismiss Claim," Affirmation of Claimant, with Exhibits 4, 5
Correspondence from Claimant, dated August 19, 2013 6
"Amended Rebuttal," from Claimant, with Exhibit 7
Affirmation in Reply 8
Filed Papers: Claim.
In this claim, claimant seeks damages for personal injuries suffered by him on November 26, 2004, when he allegedly slipped and fell on a wet floor in his dormitory room at Marcy Correctional Facility, where he was then incarcerated. Claimant alleges that he dislocated and broke his right ankle, necessitating surgery.
In a prior Decision and Order to Motion Nos. M-72815 and M-72890 dated June 29, 2007, and filed with the Clerk of the Court of Claims on August 6, 2007, this Court dismissed a prior claim brought by the claimant based upon identical facts and allegations (Claim No. 113050). In that Decision and Order, however, this Court also granted claimant's application seeking permission to serve and file a late claim. In granting claimant's application, this Court directed claimant "to serve and file a properly verified claim, . . within 45 days from the date of filing of this decision and order in the Clerk's Office [August 6, 2007]; and . . . that such service and filing must be accordance with the Court of Claims Act, with particular reference to Sections 10, 11 and 11-a, and the Uniform Rules for the Court of Claims."
Long v State of New York, UID No. 2007-009-017 (Ct Cl, Midey, J., June 29, 2007). Unpublished decisions and selected orders of the Court of Claims are available via the Internet at http://www.nyscourtofclaims.state.ny.us.
Dismissal of Claim No. 113050 was based upon untimely service of the claim upon the Attorney General.
The instant claim was then filed and served by the claimant. As set forth in defendant's moving papers (Items 1, 2), the claim was received by the Attorney General's Office on September 26, 2007 (see Exhibits A and B to Items 1, 2). The records of this Court establish that the claim was filed with the Clerk of the Court of Claims on October 11, 2007.
Defendant now moves to dismiss this claim, contending that the claim was neither served upon the Attorney General or filed with the Clerk of the Court of Claims in a timely manner as required by this Court's Decision and Order granting claimant's request for late claim relief. As previously stated, this Court's Decision and Order was filed with the Court of Claims on August 6, 2007. The Decision and Order required that the claim be filed and served with 45 days of that filing date, or September 20, 2007. There is no question, therefore, that the claim was not served or filed within 45 days of the filing date of this Court's prior Decision and Order permitting such late service and filing.
The Court has the discretionary authority to grant an extension of time within which to comply with a prior order granting a claimant permission to file a late claim (see Matter of Yackle v State of New York, 21 AD3d 1283 [4th Dept 2005]). Authority is limited, however, since the Court does not have the discretionary authority to reinstate time-barred causes of action (Roberts v City Univ. of N. Y., 41 AD3d 825 [2d Dept 2007]; Crum & Foster Ins. Co. v State of New York, 25 AD3d 643 [2d Dept 2006]). .
Furthermore, the time periods set forth in Section 11 of the Court of Claims Act constitute a jurisdictional prerequisite to the institution and maintenance of a claim against the State, and therefore must be strictly construed (Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]).
In this particular matter, the incident forming the basis of this negligence claim occurred on November 26, 2004. Pursuant to CPLR § 214, the applicable statute of limitations for instituting an action based upon negligence is three years from the date of accrual. Claimant therefore timely made his application for leave to serve and file a late claim, which relief was granted by this Court,yet claimant failed to timely comply with the time frames set forth in that Order. At this point in time, the applicable statute of limitations has long since expired and this Court is deprived of jurisdiction and therefore does not have the discretionary authority to grant claimant any additional time within which to comply with its prior order (see Roberts v City Univ. of N. Y., supra; Crum & Foster Ins. Co. v State of New York, supra).
See Decision and Order to motion Nos. M-72815 and M-72890, previously discussed herein.
Claimant, however, contends that his claim was timely served because he submitted a disbursement request form requesting "certified return receipt mail" to DOCS employees at Marcy Correctional Facility (Marcy) on September 16, 2007, within the 45 days permitted by this Court's prior Decision and Order. However, Court of Claims Act § 11 (a) (i) specifically states that service is not complete until the claim is received in the Office of the Attorney General, and therefore the simple delivery of the claim to the mailroom at Marcy simply does not equate to service upon the defendant.
To the extent that claimant is arguing that the State should be estopped from raising the defense of untimely service, the Court finds that claimant has not established any unreasonable delay by mail room personnel at Marcy in the processing of his claim for mailing. Although under certain circumstances the doctrine of estoppel can be applied against the defendant in situations where correctional facility personnel failed to act or unreasonably delayed a request for mailing (see Wattley v State of New York, 146 Misc 2d 968 [Ct Cl 1990]), such circumstances do not exist in the present matter. Claimant made his request on September 16, 2007, a mere four days before the deadline for service and filing of his claim as permitted by this Court's Decision and Order. The disbursement request form was received by officials at Marcy on September 17, 2007, and was processed on September 24, 2007. The Court does not find any unreasonable delay in the processing of this request, and therefore finds that the State is not estopped from asserting the defense of untimeliness (see Rivera v State of New York, 5 AD3d 881 [3d Dept 2004]).
Claimant also contends that his claim was timely filed with the Clerk of the Court of Claims based upon his disbursement request made to Marcy officials dated September 13, 2007 (see Item 7, "Amended Rebuttal" Exhibit A). As previously stated, the claim was not filed with the Clerk of the Court of Claims until October 11, 2007. Although the time period between claimant's request for mailing and actual receipt by the Clerk's Office is much greater than the time period which elapsed between claimant's disbursement request for service and actual service of the claim, claimant has not shown that this delay is attributable to any actions or inaction on the part of mail room personnel at Marcy. Nevertheless, in view of the fact that this Court has determined that the claim was not timely served upon the Attorney General, it is not necessary for the Court to make any determination regarding estoppel as far as it applies to the timing of the filing of the claim.
Accordingly, based upon the foregoing, it is
ORDERED, that Motion No. M-83713 is hereby GRANTED; and it is further
ORDERED, that Claim No. 114335 is hereby DISMISSED.
November 25, 2013
Syracuse, New York
NICHOLAS V. MIDEY JR.
Judge of the Court of Claims