Opinion
# 2015-040-024Claim No. 121185Motion Nos. M-86179M-86243
05-06-2015
RICHARD NEAL v. THE STATE OF NEW YORK
Richard Neal, Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Paul F. Cagino, Esq., AAG
Synopsis
Court grants State's pre-Answer motion to dismiss the Claim. Claimant failed to establish that the Claim was served upon Defendant.
Case information
UID: | 2015-040-024 |
Claimant(s): | RICHARD NEAL |
Claimant short name: | NEAL |
Footnote (claimant name) : | |
Defendant(s): | THE STATE OF NEW YORK |
Footnote (defendant name) : | |
Third-party claimant(s): | |
Third-party defendant(s): | |
Claim number(s): | 121185 |
Motion number(s): | M-86179, M-86243 |
Cross-motion number(s): | |
Judge: | CHRISTOPHER J. McCARTHY |
Claimant's attorney: | Richard Neal, 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: | May 6, 2015 |
City: | Albany |
Comments: | |
Official citation: | |
Appellate results: | |
See also (multicaptioned case) |
Decision
For the reasons set forth below, Defendant's pre-Answer motion to dismiss the Claim pursuant to CPLR 3211(a)(2) and (8), on the basis that the Court lacks subject matter jurisdiction over the Claim and personal jurisdiction over the Defendant as a result of Claimant's failure to serve the Claim as required by Court of Claims Act ???? 10 and 11(a)(i), is granted, and the Court's Order to Show Cause is vacated.
This pro se Claim, which was filed with the Clerk of the Court on April 17, 2012, alleges that, beginning on June 12, 2010, Defendant failed to provide Claimant proper dental and medical care at the following correctional facilities: Coxsackie, Greene, Great Meadow and Bare Hill. It is asserted that Claimant had a cyst that burst and has a rash on his head, neck and body. It is also asserted that Claimant's dentures do not fit properly.
Pursuant to Court of Claims Act ?? 10(3), the provision applicable to personal injury actions caused by negligence or unintentional torts of State employees, 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. In either case, Claimant was required to initiate action within 90 days of the Claim's accrual.
Court of Claims Act ?? 11(a)(i) provides that the Claim shall be filed with the Clerk of the Court and that a copy shall be served upon the Attorney General within the time period provided in Section 10 of the Court of Claims Act, either personally or by certified mail, return receipt requested. The statute further provides that service by certified mail, return receipt requested, is not complete until the Claim or Notice of Intention to File a Claim is received by the Attorney General. It is well established that failure to timely serve the Attorney General in strict compliance with Court of Claims Act ?? 11 gives rise to a jurisdictional defect (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]).
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]). This is a pre-Answer motion to dismiss.
In his affirmation submitted in support of Defendant's motion, Defense counsel asserts that, on December 8, 2010, Claimant served a Notice of Intention to File a Claim upon the Attorney General (Affirmation of Paul F. Cagino, Esq., ?? 5 [hereinafter, "Cagino Affirmation"] and Ex. A attached thereto). Counsel further asserts that Claimant failed to serve a Claim upon the Attorney General as required (Cagino Affirmation, ?? 7). Defendant also submitted an Affidavit of Janet Barringer, a Senior Clerk in the Albany Office of the Attorney General, stating that, upon her thorough search of the records of the New York State Attorney General's office, she found that a document entitled Notice of Intention to File a Claim captioned Neal v State of New York was received by the Attorney General on December 8, 2010 by certified mail, return receipt requested (number 7009 2820 0003 5563 9351) (Ex. B attached to Cagino Affirmation, ?? 2 [e]).
In opposition to the motion, Claimant has submitted copies of an inmate disbursement form dated December 7, 2010 requesting funds to mail a document to the Attorney General by certified mail, a certified mail receipt and a certified mail return receipt card indicating that he served an item by certified mail, return receipt number 7009 2820 0003 5563 9351 upon the Attorney General on December 8, 2010. Defendant asserts that the same article number was affixed to the package that contained the Notice of Intention. Claimant also submitted copies of an inmate disbursement form dated April 13, 2012 requesting funds to mail a document to the Court of Claims by certified mail, a certified mail receipt stamped April 13, 2012, and a certified mail return receipt card indicating that he served an item by certified mail, return receipt number 7011 0470 0001 0230 4112, upon the Clerk of the Court of Claims. The Court has reviewed the filed Claim and notes that Mr. Neal states he served a Notice of Intention upon the Attorney General on December 8, 2010. A copy of the signed return receipt, with the article number referred to above, indicating that it was received by the Attorney General on December 8, 2010, is also attached. There is no affidavit of service indicating that he served the Claim upon Defendant. Mr. Neal has not submitted any evidence to establish that the Claim was served upon the Attorney General.
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]). Here, Defendant raised the defense with particularity in this pre-Answer motion to dismiss. Therefore, the Court concludes that Defendant established that the Claim was not served by Claimant upon the Attorney General as required by Court of Claims Act ?? 11(a)(i), and the Claim is hereby dismissed.
The Court's Order to Show Cause is vacated based upon the above determination.
May 6, 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:
Papers Numbered
Notice of Motion, Affirmation in support &
Exhibits attached 1
Copies of documents submitted by Claimant 2
Filed Papers: Claim