Opinion
# 2015-010-024 Claim No. 122546 Motion No. M-86469
05-06-2015
PATRICK PILORGE v. STATE OF NEW YORK DEPARTMENT OF CORRECTIONS AND COMMUNITY SERVICES, Phillip Heath, Superintendent of Sing Sing Correctional Facility William Keyser, Deputy Superintendent Arlene O'Cana, Correctional Sergeant Mario Panzarella, Correctional Officer Emery Malloy, Correctional Officer Emily Torres, Correctional Officer Ivan Harvey, Facility Plumber
PATRICK PILORGE Pro Se HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York By: Terrance K. DeRosa, Assistant Attorney General
Synopsis
Defendant's motion to dismiss granted, service untimely.
Case information
| UID: | 2015-010-024 |
| Claimant(s): | PATRICK PILORGE |
| Claimant short name: | PILORGE |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK DEPARTMENT OF CORRECTIONS AND COMMUNITY SERVICES, Phillip Heath, Superintendent of Sing Sing Correctional Facility William Keyser, Deputy Superintendent Arlene O'Cana, Correctional Sergeant Mario Panzarella, Correctional Officer Emery Malloy, Correctional Officer Emily Torres, Correctional Officer Ivan Harvey, Facility Plumber |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 122546 |
| Motion number(s): | M-86469 |
| Cross-motion number(s): | |
| Judge: | Terry Jane Ruderman |
| Claimant's attorney: | PATRICK PILORGE Pro Se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York By: Terrance K. DeRosa, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 6, 2015 |
| City: | White Plains |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers numbered 1-3 were read and considered by the Court on the State of New York's (hereinafter defendant) motion to dismiss:
Notice of Motion, Attorney's Supporting Affirmation and Exhibits.........................1
Claimant's Opposing Affidavit, Memorandum of Law............................................2
Defendant's Reply.......................................................................................................3
Claim No. 122546 alleges that on November 26, 2011, during claimant's incarceration at Sing Sing Correctional Facility, he injured himself while cleaning the sink in his cell. Claimant alleges that defendant was negligent in failing to repair the broken porcelain sink which claimant had reported one day prior to his injury. Defendant moves to dismiss the claim because it was not timely commenced. Specifically, defendant argues that, due to claimant's failure to properly serve the Notice of Intention to File a Claim in accordance with the mandates of Court of Claims Act § 10 (3), the claim was untimely.
Claimant does not dispute that he served the notice of intention by regular mail (see also Defendant's Exs. A, D). Regular mail is not an authorized manner of service under the statute and therefore the notice of intention was a nullity and could not effectively extend the time within which to serve and file a claim pursuant to Court of Claims Act § 11 (b) (see Miranda v State of New York, 113 AD3d 943 [3d Dept 2014]; Prisco v State of New York, 62 AD3d 978 [2d Dept 2009]; Langner v State of New York, 65 AD3d 780 [3d Dept 2009] [deficient notice of intention does not extend time to serve and file a claim]). Consequently, the claim served upon defendant on March 28, 2013 was untimely because it was not served within 90 days of November 26, 2011, the accrual date alleged in the claim for personal injuries (Defendant's Exs. B, D; Court of Claims Act § 10 [3]; Bennett v State of New York, 106 AD3d 1040 [2d Dept 2013]). Failure to comply with the statutory mandates of Court of Claims Act §§ 10 and 11 is a jurisdictional defect compelling dismissal of the claim (Court of Claims Act § 10 [3]; Bennett, 106 AD3d 1040).
Additionally, to the extent that claimant seeks late claim relief, such application may not be considered by the Court because it was not timely made before the claim's statute of limitations had expired (Court of Claims Act § 10 [6]). "Once the applicable limitations period expired . . . the court was without authority either to entertain a subsequent motion to extend the time to file a late claim, or, sua sponte, to grant such relief" (Roberts v City Univ. of N.Y., 41 AD3d 825, 826 [2d Dept 2007]; Dolberry v State of New York, 71 AD3d 948 [2d Dept 2010]).
Accordingly, defendant's motion to dismiss is hereby GRANTED and claimant's application for late claim relief is DENIED.
May 6, 2015
White Plains, New York
Terry Jane Ruderman
Judge of the Court of Claims