Opinion
# 2015-040-001 Claim No. 114798 Motion No. M-85816
01-05-2015
WILFREDO MERCADO v. THE STATE OF NEW YORK
Wilfredo Mercado, Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Paul F. Cagino, Esq., AAG
Synopsis
Notice of Intention improperly served upon Defendant by regular mail and, thus, did not extend time to serve and file Claim.
Case information
UID: | 2015-040-001 |
Claimant(s): | WILFREDO MERCADO |
Claimant short name: | MERCADO |
Footnote (claimant name) : | |
Defendant(s): | THE STATE OF NEW YORK |
Footnote (defendant name) : | |
Third-party claimant(s): | |
Third-party defendant(s): | |
Claim number(s): | 114798 |
Motion number(s): | M-85816 |
Cross-motion number(s): | |
Judge: | CHRISTOPHER J. McCARTHY |
Claimant's attorney: | Wilfredo Mercado, Pro Se |
---|---|
Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Paul F. Cagino, Esq., AAG |
Third-party defendant's attorney: | |
Signature date: | January 5, 2015 |
City: | Albany |
Comments: | |
Official citation: | |
Appellate results: | |
See also (multicaptioned case) |
Decision
For the reasons set forth below, Defendant's motion to dismiss on the basis that the Notice of Intention was improperly served upon Defendant in violation of Court of Claims Act §§ 10 and 11 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.
This pro se Claim was filed with the Clerk of the Court on February 6, 2008. The Claim alleges that Claimant was incarcerated at Franklin Correctional Facility located in Malone, New York and that, on February 1, 2007, he was ordered to jump onto a moving dump truck, causing him to fall and fracture his collarbone. Claimant also asserts that the State did not provide him with timely medical treatment. A Notice of Intention to File a Claim was served upon Defendant on April 16, 2007 (see Ex. C attached to State's motion).
Defendant seeks dismissal of the Claim based upon Claimant's failure to properly serve the Notice of Intention to File a Claim upon the Attorney General in accordance with Court of Claims Act § 11(a). As pertinent to the instant matter, Court of Claims Act § 11(a)(i) provides that the Claim and Notice of Intention must be served personally or by certified mail, return receipt requested, upon the Attorney General within the time period provided in Court of Claims Act § 10(3).
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 (Court of Claims Act §§ 10[3]). In either case, Claimant was required to initiate action within 90 days of the Claim's accrual.
In his affirmation submitted in support of the motion, Defense counsel asserts that, on April 16, 2007, Claimant served by regular mail a Notice of Intention upon the Attorney General (Affirmation of Paul F. Cagino, Esq., ¶ 8 & Exhibit C attached thereto). In reviewing Exhibit C, which includes a photocopy of the envelope in which the Notice of Intention was purportedly mailed, the Court notes that the postage amounted to $.63 and that there is no certified mail or return receipt sticker affixed to the envelope. Defendant asserts that, since the Notice of Intention was not properly served upon Defendant, it did not extend Claimant's time to serve and file the Claim. Defense counsel further asserts that, on February 14, 2008, Claimant served the Claim upon the Attorney General (id., ¶ 13 and Ex. A attached to State's motion), more than a year after the Claim accrued and, thus, the Claim was untimely. Moreover, Claimant failed to controvert Defendant's assertions or provide evidence that either the Notice of Intention or the Claim was properly served upon the State.
The failure to properly serve the Attorney General gives rise to a defect in jurisdiction which, if not raised with particularity, is subject to the waiver provisions of Court of Claims Act § 11(c) (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]; Knight v State of New York, 177 Misc 2d 181, 183 [Ct Cl 1998]).
Section 11 of the Court of Claims Act constitutes a jurisdictional prerequisite to the institution and maintenance of a claim against the State and, thus, must be strictly construed (Buckles v State of New York, 221 NY 418 [1917]; Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]; Byrne v State of New York, 104 AD2d 782 [2d Dept 1984], lv denied 64 NY2d 607 [1985]). The Court cannot waive a defect in jurisdiction that has been timely raised (Thomas v State of New York, 144 AD2d 882 [3d Dept 1988]). Defendant timely and properly raised, with particularity, its defense that the Notice of Intention was delivered by regular mail, not certified mail, return receipt requested, as required by Court of Claims Act § 11(a) in its Answer (dated March 25, 2008) as its sixth defense. Therefore, the Court concludes that Defendant established that the Notice of Intention was improperly served upon it.
Based upon the foregoing, Defendant's motion is granted and the Claim is hereby dismissed for failure to properly serve the Notice of Intention and Claim upon the Attorney General as required by Court of Claims Act § 11(a)(i). As the Notice of Intention was not properly served upon Defendant, it did not extend Claimant's time to serve and file the Claim and, thus, the Claim is untimely. The Court finds that the Claim itself, which was filed on February 6, 2008, was not timely filed within 90 days of the Claim's accrual on February 1, 2007. Therefore, the Claim is dismissed.
January 5, 2015
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 for dismissal:
Papers Numbered
Notice of Motion, Affirmation in Support & Exhibits attached 1
Filed Papers: Claim, Answer