Opinion
# 2021-053-510 Claim No. 134085 Motion No. M-95586 Cross-Motion No. CM-96134
02-25-2021
PATRICIA MATTHEWS, as Presumptive Administratrix of KAAZIM M. FREEMAN v. THE ATTORNEY GENERAL OF THE STATE OF NEW YORK, THE STATE OF NEW YORK, NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION (DOCCS), WENDE CORRECTIONAL FACILITY, ANTHONY ANNUCCI, as Acting Commissioner of the New York State Department of Corrections and Community Supervision, and EDWARD DONNELY, as Superintendent of Wende Correctional Facility
BROWN HUTCHINSON, LLP BY: Okeano N. Bell, Esq. HON. LETITIA JAMES New York State Attorney General BY: Wendy E. Morcio, Esq. Assistant Attorney General
Synopsis
In response to the Court's Order to Show Cause regarding the service of this claim on the Attorney General, the Attorney General established that no notice of intention or claim was served and the claim is dismissed. Claimant's cross-motion for equitable relief is denied.
Case information
| UID: | 2021-053-510 |
| Claimant(s): | PATRICIA MATTHEWS, as Presumptive Administratrix of KAAZIM M. FREEMAN |
| Claimant short name: | MATTHEWS |
| Footnote (claimant name) : | |
| Defendant(s): | THE ATTORNEY GENERAL OF THE STATE OF NEW YORK, THE STATE OF NEW YORK, NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION (DOCCS), WENDE CORRECTIONAL FACILITY, ANTHONY ANNUCCI, as Acting Commissioner of the New York State Department of Corrections and Community Supervision, and EDWARD DONNELY, as Superintendent of Wende Correctional Facility |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 134085 |
| Motion number(s): | M-95586 |
| Cross-motion number(s): | CM-96134 |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | BROWN HUTCHINSON, LLP BY: Okeano N. Bell, Esq. |
| Defendant's attorney: | HON. LETITIA JAMES New York State Attorney General BY: Wendy E. Morcio, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | February 25, 2021 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
On December 5, 2019, a document entitled "NOTICE OF CLAIM / NOTICE OF INTENTION TO FILE SUIT" was filed by the Court of Claims as claim no. 134085. No answer to the claim was filed, raising questions regarding service of the claim upon the Attorney General. By Order to Show Cause (OTSC) dated June 26, 2020 (Motion no. M-95586), this Court ordered the parties to submit statements regarding the service of claim no. 134085 on the Attorney General in compliance with Court of Claims Act §§ 10 and 11.
In order to commence an action against the State of New York in the Court of Claims, a claim must be filed and a copy served upon the Attorney General personally or by certified mail, return receipt requested, 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 personally or by certified mail, return receipt requested, in which event the claim must be filed and served within two (2) years of accrual of a claim based on negligence or within one (1) year of accrual of an intentional tort claim (Court of Claims Act §§ 10 [3], 10 [3-b] and 11 [a] [i]). A claim for wrongful death shall be filed and served upon the Attorney General within ninety days (90) after the appointment of an executor or administrator of the decedent, unless the claimant shall within the same ninety (90) day period serve upon the Attorney General a notice of intention to file a claim, in which event the claim shall be filed and served within two (2) years after the death of the decedent. In either event, a wrongful death claim shall be filed and served within two years after the death of the decedent (Court of Claims Act § 10 [2]).
The filing and service requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]). The failure to comply with the service requirements of the Court of Claims Act deprives the Court of jurisdiction, requiring dismissal of the claim (Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]; Byrne v State of New York, 104 AD2d 782 [2d Dept 1984], app denied 64 NY2d 607 [1985]).
In response to the Court's Order to Show Cause, Assistant Attorney General Wendy E. Morcio submitted the affidavit of Debra L. Mantell, a Legal Assistant II in the Albany, New York Office of the Attorney General (OAG) (Defendant's Exhibit A). Ms. Mantell's affidavit was sworn to September 23, 2020. According to Ms. Mantell, a search of OAG's digital case management system revealed no record that a notice of intention to file a claim or a claim by Patricia Matthews for an incident involving Kaazim F. Freeman that occurred at Wende Correctional Facility (Wende) on or about September 6, 2019 was served upon the OAG.
According to claimant's counsel, a notice of intention was subsequently served upon the OAG on November 5, 2020, almost a year after the claim was filed and weeks after Ms. Martell's affidavit was notarized. The November 2020 notice of intention is not before the Court. --------
In response to the Court's OTSC, claimant's counsel submitted an "Attorney Affirmation in Response to Order to Show Cause & Cross Motion." While this document was filed as a cross motion (cross motion no. CM-96134), no notice of cross motion was filed and the Court views this document as primarily a response to the Court's OTSC.
Claimant's counsel alleges that the "Notice of Claim / Notice of Intention to File Suit" filed with the Court as claim no. 134085 was not a claim but rather a notice of intention to file a claim (incorrectly referred to by claimant's counsel as a notice of intention to file suit). Whatever claim no. 134085 as filed on December 5, 2019 was intended to be, it is undisputed that it was filed as a claim and never served on the OAG. Further, claimant's counsel submits that his client seeks to withdraw the claim if the filing was considered a claim (Affirmation of Okeano N. Bell, Esq., ¶¶ 20 and 26). Accordingly, claim no. 134085 is hereby dismissed.
As claim no. 134085 has been dismissed and as this Court does not have jurisdiction to grant strictly equitable relief such as the declaratory relief claimant seems to be requesting in the cross motion, claimant's cross motion no. CM-96134 is denied in its entirety (see Shelton v New York State Liq. Auth., 61 AD3d 1145 [3d Dept 2009]; Lapierre v The State of New York, UID No. 2016-041-067 [Ct Cl, Milano, J., Aug. 22, 2016]).
February 25, 2021
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 June 26, 2020; 2. Affidavit of Assistant Attorney General Wendy E. Morcio sworn to September 24, 2020, with annexed Exhibit A; and 3. Affirmation of Okeano N. Bell, Esq. dated November 6, 2020, with annexed Exhibits A-E.