Opinion
# 2016-018-702 Claim No. 126252 Motion No. M-86982 Motion No. M-87494
02-04-2016
MICHAEL MOORE v. STATE OF NEW YORK
SIDNEY P. COMINSKY TRIAL LAWYERS, LLC By: Sidney P. Cominsky, Esquire ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Bonnie Gail Levy, Esquire Assistant Attorney General
Synopsis
Defendant's motions to dismiss the claim and amended claim were granted as untimely for all intentional tort causes of actions and failure to comply with Court of Claims Act § 11 (b).
Case information
| UID: | 2016-018-702 |
| Claimant(s): | MICHAEL MOORE |
| Claimant short name: | MOORE |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | The Court has amended the caption sua sponte to reflect the State of New York as the only proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126252 |
| Motion number(s): | M-86982, M-87494 |
| Cross-motion number(s): | |
| Judge: | DIANE L. FITZPATRICK |
| Claimant's attorney: | SIDNEY P. COMINSKY TRIAL LAWYERS, LLC By: Sidney P. Cominsky, Esquire |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Bonnie Gail Levy, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | February 4, 2016 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant brought a motion (M-86982) to dismiss the claim. Claimant opposes the motion and has served an amended claim. Defendant brings a second motion (M-87494) to dismiss the amended claim and Claimant opposes that motion. A review of the somewhat complicated procedural history of this action is necessary. Procedural History
On September 3, 2013, Claimant, pro se, personally served a verified notice of intention to file claim, containing 8 pages and 27 paragraphs. In that notice of intention, he claims personal injuries for false arrest, false imprisonment, malicious prosecution, intentional and negligent infliction of emotional distress, abuse of process, libel, slander, defamation of character, negligent hiring, training and supervision, violations of New York Civil Rights Law, violations of Gun Control Act of 1968, violations of New York Mental Hygiene Law, violations of 42 USC section 1983, and violations of the New York State Constitution and the United States Constitution. There are also allegations sounding in medical malpractice.
The notice of intention names three additional claimants and their allegations of wrongdoing. For purposes of these motions, the focus will be on only the allegations involving this Claimant, Michael Moore.
On June 5, 2015, a second notice of intention to file a claim was personally served. This notice of intention was prepared by counsel, names only this Claimant, Michael Moore, and alleges almost identical causes of action with some additional allegations of wrongdoing.
Also on June 5, 2015, Claimant personally served a document entitled "Summons with Notice" and filed it with the Clerk of the Court of Claims. The Clerk of the Court treated the "Summons with Notice" as a claim, and it will be referred to herein as the claim. This document has two pages, consisting of primarily a single-spaced paragraph of Defendant's alleged wrongdoing. Prior to answering the claim, Defendant brought the first motion to dismiss (M-86982).
In that motion, Defendant argues that the claim should be dismissed for several reasons. First, that the claim fails to comply with CPLR 3013 and 3014, by failing to plead with sufficient particularity the material elements of each cause of action, and fails to provide plain and concise statements in consecutively numbered paragraphs. Defendant also argues that under CPLR 3211 (a) (2), the Court lacks subject matter jurisdiction over several of Claimant's causes of action, and the claim should be dismissed for lack of personal and subject matter jurisdiction for failure to set forth a cause of action or provide the required allegations in accordance with CPLR 3012-a, 3211 (a) (2), (7) and (8) and Court of Claims Act sections 8, 9 and 11 (b). Defendant asserts that all of Claimant's intentional causes of action must be dismissed as untimely. The negligence causes of action must also be dismissed as untimely, because the first notice of intention failed to comply with Court of Claims Act section 11 (b) and, therefore, did not extend Claimant's time to file and serve a claim under Court of Claims Act section 10 (3) or 10 (3-b). Defendant also alleges that the second notice of intention was untimely for any causes of action arising from June 4-8, 2013 accrual dates, and the claim should otherwise be dismissed for failing to set forth the date, time or location of the alleged wrongdoing, the injuries suffered, or the specific acts of wrongdoing or the provisions of the constitutions or statutes violated. Finally, Defendant seeks amendment of the caption to include only the State of New York.
In response to Defendant's first motion to dismiss, Claimant personally served, on August 25, 2015, a verified amended claim, addressing some of Defendant's objections. Pursuant to CPLR 3012-a, the amended claim attaches a certificate of merit and has separately numbered paragraphs with somewhat more concise allegations. Five causes of action are identified in the document: negligent care and treatment of Claimant arising from the State's failure to follow the requirements of New York State Mental Hygiene Law; a second cause of action seems to assert negligent infliction of emotional distress, a third cause of action alleges negligent supervision and control of Defendant's officers, agents, servants, employees and subcontractors; a fourth cause of action asserts negligent care and treatment of Claimant; and the final cause of action alleges Claimant's rights under the New York State Constitution were violated.
In opposition to the Defendant's first motion to dismiss, Claimant submits the affidavit of his counsel. Claimant argues that since he has served an amended claim as of right before Defendant's time to answer has expired, the amended claim supercedes the originally filed and served claim. Claimant also argues that the amended claim corrects most of the reasons Defendant complains the claim should be dismissed. Claimant also contends that the original claim was timely commenced because the first notice of intention met the requirements of Court of Claims Act section 11 (b) and the claim was served within two years of the date of accrual.
Defendant brings the second motion to dismiss (M-87494) addressed to the amended claim. Defendant argues that the amended claim also fails to comply with CPLR 3013 and 3014, since several paragraphs include many allegations, and the "Fourth Cause of Action" includes 16 causes of action. Defendant also argues that Claimant has failed to state a constitutional tort cause of action, and the Court lacks the authority to award attorney's fees and disbursements. According to Defendant, the amended claim also fails to comply with Court of Claims Act section 11 (b), because it fails to state the time of the incidents, the nature of those incidents with sufficient specificity, or the injuries suffered. Defendant argues that the lack of specificity is apparent because the allegations sound in both negligent and intentional conduct and fail to identify what section of the Mental Hygiene Law it allegedly violated. Defendant argues that the effort to label intentional wrongdoing as negligence, does not make the conduct that would be untimely as an intentional cause of action under Court of Claims Act sections 10 (3), timely under 10 (3-b). Since the amended claim was served and filed more than one year after the accrual dates of June 4-8, 2013, all intentional causes of action would be untimely. No medical malpractice cause of action has been set forth, because the amended claim does not assert any deviation from the standard of care, or any allegation that any deviation caused Claimant's injuries. Defendant notes an absence of factual details or dates regarding the manner in which it failed to train or supervise employees nor, Defendant argues, is there any allegation that the employees were acting outside the scope of their employment. Also, Defendant argues that since the first notice of intention failed to meet the requirements of Court of Claims Act section 11 (b), it failed to extend the time for Claimant to timely serve and file a claim, making the first claim and the amended claim both untimely. Defendant also argues that no allegations were raised in the first notice of intention regarding negligent supervision and, therefore, the amended claim is untimely as it relates to this cause of action. The Alleged Facts
On June 4, 2013, Claimant was involved in a motor vehicle accident and suffered injuries. On June 5, 2013, Claimant was voluntarily admitted as a patient at the State University of New York (SUNY) Upstate University Hospital for injuries suffered during that motor vehicle accident. On June 7, 2013, Claimant's wife and two daughters were visiting with him when he sought to sign himself out of the hospital. His request to be discharged was denied, and when he began walking out of the hospital with his wife and children, he was confronted by SUNY Upstate University Hospital police and prevented from leaving. At that time, he alleges that he was physically restrained from leaving the hospital, forcibly returned to his room, confined, and involuntarily sedated. While he was being restrained, he struck his head and back on the floor and was injured. Claimant was not permitted to leave the hospital until June 8, 2013.
Timeliness and Sufficiency of the Notices of Intention , Claim and Amended Claim Under Court of Claims Act
Court of Claims Act section 10 (3) provides that a claim to recover damages for injuries to property or for personal injuries caused by the negligence or unintentional tort of an officer or employee of the State, while acting as an officer or employee, shall be filed and served upon the Attorney General within 90 days after the accrual of the claim, unless a notice of intention to file a claim is served within those 90 days, in which case a claim shall then be filed and served upon the Attorney General within two years of the date of accrual. Court of Claims Act section 10 (3-b) provides that a claim for an intentional tort of an employee or officer of the State must be filed and served within 90 days of the date of accrual, unless a notice of intention has been served, in which case a claim must be filed and served within one year from the date of accrual. Section 11 (b) of the Court of Claims Act sets forth what information must be included in the claim and notice of intention.
It has consistently been held that strict compliance with sections 10 and 11 of the Court of Claims Act is a jurisdictional prerequisite to commencing and maintaining a claim against the State (Lepkowski v State of New York, 1 NY3d 201, 206-207 [2003]; Hatzfeld v State of New York, 104 AD3d 1165 [4th Dept 2013]). Since whether the notices of intention, the claim or amended claim are timely and meet the requirements of Court of Claims Act section 11 (b) raise issues of this Court's subject matter jurisdiction (see Hatzfeld, 104 AD3d at 1166; Hughes v State of New York, 105 AD3d 907 [2d Dept 2013]; City of New York v State of New York, 46 AD3d 1168 [3d Dept 2007]) these issues will be addressed first.
Timeliness and Sufficiency of September 3 , 2013 , Notice of Intention
Court of Claims Act section 11 (b) requires that a notice of intention to file a claim must contain all of the information required for a claim, except for the items of damages or injuries and the total sum claimed. The notice of intention must set forth the time, place, and nature of the claim (Court of Claims Act § 11 [b]). It also must be served within 90 days of the date of accrual (Court of Claims Act §§ 10 [3] and [3-b]).
This notice of intention was timely and properly served and adequately meets the requirements of Court of Claims Act section 11 (b).
Timeliness and Sufficiency of June 5 , 2015 , Notice of Intention
This notice of intention was not served within 90 days of June 4-8, 2013, the only dates of wrongdoing which Claimant alleges. This notice of intention is therefore untimely (Court of Claims Act §§ 10 [3] and [3-b]).
Timeliness and Sufficiency of June 5 , 2015 , Claim
Claimant argues that the original claim (June 5, 2015) was timely but is superceded by the amended claim served and filed on August 25, 2015, as a matter of right, before Defendant's time to answer expired. In the Court of Claims, a Defendant typically has 40 days after service of a claim to interpose an answer to it (Uniform Rules for the Court of Claims [22 NYCRR] § 206.7 [a]). A claim may be amended as of right, without leave of Court, within those 40 days or within 40 days after service of a pleading responding to it (Uniform Rules for the Court of Claims [22 NYCRR] § 206.7 [b]; CPLR 3025). Here, Defendant did not answer the claim but, instead, brought a pre-answer motion to dismiss which thereby extended Claimant's time to file and serve an amended claim as of right (CPLR 3211 [f]; Aikens Constr. of Rome v Simons, 284 AD2d 946 [4th Dept 2001]; STS Mgt. Dev. v New York State Dept of Taxation & Fin., 254 AD2d 409 [2d Dept 1998]). Claimant's amended pleading was served before this motion was heard and, therefore, was timely served without leave of Court. Although Claimant is correct that an amended pleading usually supercedes the original and becomes the only pleading (St Lawrence Explosives Corp. v Law Bros. Contr. Corp., 170 AD2d 957 [4th Dept 1991]), the jurisdictional sufficiency of the original pleading must be established, because a claim may not be amended to cure a jurisdictional defect in the Court of Claims (Nasir v State of New York, 41 AD3d 677, 677 [2d Dept 2007]; Grande v State of New York, 160 Misc 2d 383, 385 [Ct Cl 1994]).
Since the notice of intention served on September 3, 2013, was timely and substantively sufficient for purposes of Court of Claims Act section 11 (b), this extended Claimant's time to serve and file a claim until one year from the date of accrual for all intentional causes of action, and two years for any negligence or unintentional causes of action (Court of Claims Act § 10 [3-b]). No claim was served within one year of June 4-8, 2013, and, therefore, any cause of action based upon an intentional tort - false arrest, false imprisonment, malicious prosecution, excessive force, intentional infliction of emotional distress, abuse of process, libel, slander and defamation- is untimely and cannot be maintained. Only Claimant's negligence and unintentional tort causes of action are timely.
Defendant also argues that the claim is jurisdictionally deficient because it fails to set forth the allegations and factual information required by Court of Claims Act section 11 (b).
Court of Claims Act section 11 (b) demands that a claim: "state the [1] time when and [2] place where such claim arose, [3] the nature of the same, and the [4] items of damage or injuries claimed to have been sustained." (Court of Claims Act § 11 [b]). These four requirements are "substantive conditions upon the State's waiver of sovereign immunity." (Lepkowski, 1 NY3d at 207). The failure to provide any item of information required by Court of Claims Act section 11 (b) is a jurisdictional defect (Kolnacki v State of New York, 8 NY3d 277 [2007]). Yet, if the four requirements are met, jurisdiction is established and the claim "may always be amended at a later time, if necessary." (Id. at 281 [referring to amending the amount of damages demanded after the claim is filed and served if necessary]; Asbery v State of New York, UID No. 2014-029-010 [Ct Cl, Mignano, J., Feb. 4, 2014]). The single-spaced, two page, one paragraph claim sets forth conclusory assertions of violations of the Mental Hygiene Law, 42 USC section 1983, and alleged negligent actions without setting forth a single fact about specifically what happened or when. Although the document sets forth the date of the motor vehicle accident in which Claimant was involved, it fails to provide the dates of the State's wrongdoing, or the injuries or damages Claimant sustained. The failure of the document to provide these requirements renders the claim jurisdictionally deficient, and no amendment is permitted to cure such a deficiency (Kolnacki 8 NY3d at 281; Wilson v State of New York, 61 AD3d 1367 [4th Dept 2009]; Nasir, 41 AD3d at 677; Grande 160 Misc 2d at 385). Moreover, "a lack of prejudice to the State is an immaterial factor." (Wilson, 61 AD3d at 1368). As a result, both the claim and amended claim must be DISMISSED.
In Lepkowski, 1 NY3d at 207, the Court of Appeals refers to the Court of Claims Act section 11 (b) placing five specific substantive conditions upon the State's waiver of sovereign immunity. The fifth condition referred to is the total sum claimed, however, after Lepkowski and Kolnacki v State of New York, 8 NY3d 277 [2007], the statute was amended relieving claimants of the obligation to set forth the total sum claimed in personal injury, medical malpractice, and wrongful death cases.
Accordingly, based upon the foregoing, Defendant's motions (M-86982 and M-87494) are granted and the claim and amended claim are DISMISSED.
February 4, 2016
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims The Court has considered the following documents in considering these motions:
M-86982
1) Notice of Motion. 2) Affirmation of Bonnie Gail Levy, Esquire, Assistant Attorney General, in support, with exhibits attached thereto. 3) Unsworn affidavit and Memorandum of Law of Sidney P. Cominsky, Esquire, in opposition, with exhibit.
M-87494
4) Notice of Motion. 5) Affirmation of Bonnie Gail Levy, Esquire, Assistant Attorney General, in support, with exhibits attached thereto. 6) Unsworn Affidavit and Memorandum of Law of Sidney P. Cominsky, Esquire, in opposition with exhibit attached thereto.