Opinion
# 2015-041-043 Claim No. 116945 Motion No. M-86501 Motion No. M-86602
06-10-2015
RHODES v. THE STATE OF NEW YORK
REGINALD RHODES a/k/a HASSAN ABDUL-AKRAM Pro Se HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Joan Matalavage, Esq. Assistant Attorney General
Synopsis
Service of claim upon Attorney General by regular mail is insufficient to confer subject matter jurisdiction over the claim; motion requesting that notice of intention be treated as claim is denied as untimely.
Case information
| UID: | 2015-041-043 |
| Claimant(s): | REGINALD RHODES #98A5648, a/k/a HASSAN ABDUL-AKRAM |
| Claimant short name: | RHODES |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 116945 |
| Motion number(s): | M-86501, M-86602 |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | REGINALD RHODES a/k/a HASSAN ABDUL-AKRAM Pro Se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Joan Matalavage, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | June 10, 2015 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant moves (M-86501) to dismiss this dental malpractice claim upon claimant's alleged failure to verify and properly serve the claim upon the Attorney General. In particular, defendant has submitted proof that the claim was unverified and was served upon the Attorney General by regular mail rather than personally or by certified mail, return receipt requested.
Claimant does not deny that the claim was not served either personally or by certified mail, return receipt requested.
Court of Claims Act § 11 (a) (i), provides, at relevant part:
"[A] copy [of the claim] shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for filing with the clerk of the court."
Claimant is required to satisfy the "literal notice requirements of Court of Claims Act § 11" (Femminella v State of New York, 71 AD3d 1319 [3d Dept 2010]). Any manner of service other than personal service or certified mail, return receipt requested, is insufficient to strictly fulfill the statutory criteria (Femminella 71 AD3d at 1320).
Miranda v State of New York (113 AD3d 943, 943-944 [3d Dept 2014]), explains that service of a claim by regular mail upon the Attorney General is insufficient to provide subject matter jurisdiction over the claim:
"Pursuant to Court of Claims Act § 11 (a) (i), a notice of claim must be served upon the Attorney General either personally or by certified mail, return receipt requested (see Spaight v State of New York, 91 AD3d 995, 995 [2012]; Femminella v State of New York, 71 AD3d 1319, 1320 [2010]). Here, claimant's substituted manner of service--priority mail--did not strictly comply with the statutory requirements (see Femminella v State of New York, 71 AD3d at 1320; Filozof v State of New York, 45 AD3d 1405, 1406 [2007]; Hodge v State of New York, 213 AD2d 766, 767 [1995]; Newman v State of New York, 5 Misc 3d 640, 642 [2004]). That failure 'divests the court of subject matter jurisdiction,' and, therefore, dismissal of the claim was required (Caci v State of New York, 107 AD3d 1121, 1122 [2013] [internal quotation marks and citation omitted]; accord Kolnacki v State of New York, 8 NY3d 277, 281 [2007]). As a result, we need not reach the alternative grounds for dismissal advanced by defendant." (emphasis added)
Claimant suggests that the subject matter jurisdiction defect of improper service of the claim was waived by defendant's failure to move to dismiss the claim within sixty (60) days after service of its answer (CPLR 3211 [e]).
The Court notes that lack of subject matter jurisdiction is a non-waivable defect that may be raised at any time, even for the first time on appeal, and cannot be remedied by either waiver or estoppel (Caci v State of New York, 107 AD3d 1121, 1122-1123 [3d Dept 2013]; see Burke v Aspland, 56 AD3d 1001, 1003 [3d Dept 2008], lv denied 12 NY3d 709 [2009]).
Further, the requirement of CPLR 3211 (e) that a dismissal motion based upon improper service of "the summons and complaint, summons with notice, or notice of petition and petition" be made within sixty days, does not expressly include service of a claim and "was not intended to apply to claims in the Court of Claims" (Diaz v State of New York, 174 Misc 2d 63, 65-66 [Ct Cl 1997]).
The Court lacks subject matter jurisdiction over the claim, which was indisputably served by regular mail.
The defendant's motion (M-86501) is granted. The claim is dismissed.
Claimant moves (M-86602) for an order providing that the Court treat his notice of intention to file a claim as a claim, pursuant to Court of Claims Act 10 (8), which states at relevant part as follows:
"The court shall not grant such application unless: it is made upon motion before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules; the notice of intention was timely served, and contains facts sufficient to constitute a claim; and the granting of the application would not prejudice the defendant."
Defendant opposes the claimant's motion.
Claimant has failed to provide to the Court in his motion papers a copy of his notice of intention to file a claim and has failed to show that it was timely and properly served. The application is defective on that ground alone.
In addition, the claimant's motion, made on or about April 16, 2015 regarding a claim arising in 2006-2007, is untimely because it was not made before the applicable limitations period set forth in either CPLR 214 and/or 214-a would bar a like claim (dental malpractice or negligence) "against a citizen of the state."
Claimant's motion (M-86602) is denied.
June 10, 2015
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Defendant's Notice of Motion (M-86501) to Dismiss, filed March 20, 2015;
2. Affidavit of Joan Matalavage, sworn to March 18, 2015, and annexed exhibits;
3. Claimant's Notice of Motion (M-86602) in Opposition of Motion to Dismiss, filed April 20, 2015;
4. Affidavit in Opposition of Reginald Rhodes a/k/a Hassan Abdul-Akram, sworn to April 16, 2015, and annexed exhibits;
5. Affidavit in Support of Motion to Treat Notice of Intention as Claim of Reginald Rhodes a/k/a Hassan Abdul-Akram, sworn to April 16, 2015;
6. Affidavit in Opposition and in Reply of Joan Matalavage, sworn to March [sic] 5, 2015, and annexed exhibit.