Opinion
# 2012-040-066 Claim No. 121135 Motion No. M-81681
08-14-2012
OAQUIN SANTOS #92-A-0653 v. THE STATE OF NEW YORK
Synopsis
State's motion to dismiss Claim on basis it was untimely served is granted. Case information
UID: 2012-040-066 Claimant(s): JOAQUIN SANTOS #92-A-0653 Claimant short name: SANTOS Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 121135 Motion number(s): M-81681 Cross-motion number(s): Judge: CHRISTOPHER J. McCARTHY Claimant's attorney: Joaquin Santos, Pro Se ERIC T. SCHNEIDERMAN Defendant's attorney: Attorney General of the State of New York By: Belinda A. Wagner, Esq., AAG Third-party defendant's attorney: Signature date: August 14, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
For the reasons set forth below, Defendant's motion to dismiss the Claim pursuant to CPLR 3211(a)(2) and (8), on the basis that the Court lacks both subject matter jurisdiction over the Claim and personal jurisdiction over the Defendant, is granted.
The Claim, which was filed in the office of the Clerk of the Court on April 5, 2012, alleges that, on December 2, 2010, while incarcerated at Franklin Correctional Facility located in Malone, New York, Claimant was assaulted by two named correction officers. Claimant further asserts that he was denied medical attention and was threatened with further bodily harm if he complained about the assault. The Claim asserts causes of action for assault, negligence and violation of Claimant's constitutional rights.
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 (to the extent Claimant asserts injuries caused by negligence or unintentional torts) or within one year (to the extent he asserts intentional torts of State employees) (Court of Claims Act §§ 10[3], 10[3-b]). 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]).
In her affirmation submitted in support of the State's motion, Defense counsel states that Claimant alleges the Claim accrued on December 2, 2010 and Defendant agrees with that date. Counsel further asserts that the Attorney General's office received the Claim on April 5, 2012 (see Ex. A attached to Motion). She asserts that the Claim is untimely as it was not served within 90 days of accrual as set forth above. Claimant, in his affidavit in opposition to the motion, does not controvert that the Claim was not timely served upon Defendant.
Court of Claims Act § 10 is more than a statute of limitations; it is a jurisdictional prerequisite to bringing and maintaining an action in this Court (Mallory v State of New York, 196 AD2d 925, 926 [3d Dept 1993]; DeMarco v State of New York, 43 AD2d 786 [4th Dept 1973], affd 37 NY2d 735 [1975]; Antoine v State of New York, 103 Misc 2d 664 [Ct Cl 1980]). Failure to timely comply with the statutory service and filing requirements of the Court of Claims Act constitutes a fatal jurisdictional defect requiring dismissal (Lyles v State of New York, 3 NY3d 396, 400-401 [2004]; Buckles v State of New York, 221 NY 418 [1917]; Langner v State of New York, 65 AD3d 780, 781 [3d Dept 2009]; Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]). The Court cannot waive a defect in jurisdiction that has been timely raised (see Thomas v State of New York, 144 AD2d 882 [3d Dept 1988]). The defect asserted was timely and properly raised with particularity, in this pre-Answer motion, in accordance with Court of Claims Act § 11(c).
Based upon the foregoing, Defendant's motion is granted and the causes of action for assault and negligence are dismissed for failure to timely serve and file it in accordance with Court of Claims Act § 10(3) and 10(3-b).
In addition to the above, Defendant seeks dismissal of the cause of action asserting a constitutional tort based on violations of Claimant's constitutional rights. No action may be maintained in this Court against the State for alleged Federal constitutional violations (Shelton v New York State Liquor Auth., 61 AD3d 1145, 1151 [3d Dept 2009]; Lyles v State of New York, 194 Misc 2d 32, 35-36 [Ct Cl 2002], affd 2 AD3d 694, 696 [2d Dept 2003], affd on other grounds 3 NY3d 396 [2004]; Matter of Thomas v New York Temporary State Comm. on Regulation of Lobbying, 83 AD2d 723 [3d Dept 1981], affd 56 NY2d 656 [1982]). To the extent that Claimant asserts Federal constitutional violations, his remedy lies elsewhere.
In Brown v State of New York (89 NY2d 172 [1996]), the Court of Appeals "recognized that, when certain requirements are met, a violation of the [New York State] Constitution may give rise to a private cause of action" (Waxter v State of New York, 33 AD3d 1180, 1181 [3d Dept 2006]; see Wagoner v State of New York, UID No. 2008-029-014 (Ct Cl, Mignano, J., April 2, 2008]). In Martinez v City of Schenectady (97 NY2d 78 [2001]), however, the Court of Appeals made it clear that Brown establishes a "narrow remedy," applicable in cases where no other remedy is feasible to provide citizens with "an avenue of redress" when their private interests have been harmed by constitutional violations (Martinez v City of Schenectady, 97 NY2d 78, supra at 83; Waxter v State of New York, 33 AD3d 1180, supra at 1181). Where an adequate remedy could be provided, however, "a constitutional tort claim … is [not] necessary to effectuate the purposes of the State constitutional protections … [invoked] nor appropriate to ensure full realization of [claimants'] rights" (Bullard v State of New York, 307 AD2d 676, 679 [3d Dept 2003], quoting Martinez v City of Schenectady, supra at 83).
In the present Claim, recognition of the State constitutional causes of action are neither necessary nor appropriate to ensure the full realization of Claimant's rights, because the alleged wrongs could have been redressed by an alternative remedy, namely, his negligence and assault causes of action, however, as set forth above, the Claim was not timely served and filed. Thus, the motion to dismiss the cause of action alleging violations of Claimant's constitutional rights is granted.
Based upon the foregoing, Defendant's motion is granted and the Claim is dismissed.
August 14, 2012
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 to dismiss:
Papers Numbered
Notice of Motion, Affirmation in Support
and Exhibit Attached 1
Claimant's Affidavit in Opposition 2
Filed Papers: Claim