Opinion
# 2020-058-017 Claim No. 130933 Motion No. M-95167
02-10-2020
THOMAS SCHWEERS v. STATE OF NEW YORK
Thomas Schweers, Pro Se (no appearance) Hon. Letitia James, New York State Attorney General By: Christopher J. Kalil, Esq., Assistant Attorney General
Synopsis
Motion to dismiss claim alleging failure to protect the inmate Claimant and to have disciplinary determination reversed and expunged dismissed for lack of subject matter jurisdiction and personal jurisdiction.
Case information
| UID: | 2020-058-017 |
| Claimant(s): | THOMAS SCHWEERS |
| Claimant short name: | SCHWEERS |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 130933 |
| Motion number(s): | M-95167 |
| Cross-motion number(s): | |
| Judge: | CATHERINE E. LEAHY-SCOTT |
| Claimant's attorney: | Thomas Schweers, Pro Se (no appearance) |
| Defendant's attorney: | Hon. Letitia James, New York State Attorney General By: Christopher J. Kalil, Esq., Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | February 10, 2020 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Pro se Claimant Thomas Schweers filed this Claim on February 1, 2018. The Claim alleges that Defendant failed to protect him from an assault by another inmate that occurred on November 5, 2017 at Mid-State Correctional Facility. Claimant also seeks to have a November 10, 2017 disciplinary determination premised upon the November 5, 2017 incident "reversed" and "expunged from [his] institutional records" (Affirmation of Christopher J. Kalil, Esq., Assistant Attorney General, Ex A [Claim] ¶¶ 15-21).
Defendant moves to dismiss the Claim on the grounds that the Court lacks subject matter and personal jurisdiction and the Claim fails to state a cause of action. To the extent the Claim alleges a cause of action for failure to protect, Defendant argues that the Court lacks subject matter jurisdiction over the Claim and personal jurisdiction over Defendant because neither the Claim nor a Notice of Intention to File a Claim was served or filed within 90 days of accrual in accordance with Court of Claims Act §§ 11 (a) and 10 (3). The jurisdictional objection was raised with particularity in Defendant's Verified Answer and is preserved (see Court of Claims Act § 11 [c] [i]; Affirmation of Christopher J. Kalil, Esq., Assistant Attorney General, Ex C ¶¶ 21-22 [Seventeenth and Eighteenth Affirmative Defenses]). Moreover, to the extent the Claim purports to allege a cause of action for the reversal and expungement of Claimant's disciplinary determination, Defendant contends that such relief is beyond the purview of this Court (see Affirmation of Christopher J. Kalil, Esq., Assistant Attorney General ¶¶ 9-10).
Court of Claims Act § 11 (a) (i) provides that a "claim shall be filed with the clerk of the court; and . . . a copy 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." "A claimant seeking to recover damages for personal injuries caused by the negligence, intentional tort or unintentional tort of an officer or employee of the State must file and serve a claim or, alternatively, a notice of intention to file such a claim, upon the Attorney General within 90 days after the accrual thereof" (Maude V. v New York State Off. of Children & Family Servs., 82 AD3d 1468, 1469 [3d Dept 2011]; see Court of Claims Act § 10 [3], [3-b]). "[A]s suits against [the State] are permitted only by virtue of its waiver of sovereign immunity and are in derogation of the common law, the failure to strictly comply with the filing or service provisions of the Court of Claims Act divests the court of subject matter jurisdiction and compels dismissal of the claim" (Caci v State of New York, 107 AD3d 1121, 1122 [3d Dept 2013] [internal quotation marks and citations omitted]; see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]).
Here, Claimant's cause of action alleging that Defendant failed to protect him from the assault by another inmate accrued on November 5, 2017, the day of the alleged assault (see Ramirez v State of New York, UID No. 2017-044-583 [Ct Cl, Schaewe, J., Nov. 9, 2017]). Consequently, Claimant was required to file and serve his Claim or serve a Notice of Intention to file such a Claim on or before February 5, 2018 (see Court of Claims Act §§ 10 [3]; 11 [a] [i]).
The ninetieth day after accrual of the claim was Saturday, February 3, 2018. Thus, Claimant had until Monday, February 5, 2018 to serve a Notice of Intention or a Claim (see General Construction Law § 25-a [1]). --------
As an initial matter, it appears that a Notice of Intention was never served upon the Attorney General as Claimant does not allege that a Notice of Intention was served and the Attorney General does not acknowledge receiving same. Because a Notice of Intention was not served by Claimant upon the Attorney General, Claimant was required to file and serve his Claim on or before February 5, 2018.
Although the Claim was timely filed on February 1, 2018, the Claim was not timely served upon the Attorney General. Court of Claims Act § 11 (a) (i) provides that "[s]ervice by certified mail, return receipt requested, upon the attorney general shall not be complete until the claim or notice of intention is received in the office of the attorney general" (emphasis added). In support of its motion, Defendant submits copy of the envelope in which the Claim was received. This envelope is postmarked February 6, 2018, one day after the 90-day statutory period (see Affirmation of Christopher J. Kalil, Esq., Assistant Attorney General, Ex B). Moreover, Defendant includes a date-stamped copy of the Claim indicating that it was not received by the Attorney General until February 12, 2018, seven days after the 90-day statutory period (see Court of Claims Act § 11 [a] [i]; Affirmation of Christopher J. Kalil, Esq., Assistant Attorney General, Ex A). Claimant failed to submit any proof to rebut that contention. Consequently, the Court concludes that, to the extent the Claim asserts a cause of action against Defendant for failure to protect him from an assault by another inmate, the Claim was not timely served in accordance with Court of Claims Act § 11 (a) (i) and must be dismissed.
Additionally, to the extent the Claim seeks to reverse and expunge Claimant's November 10, 2007 disciplinary determination, it must be dismissed. "As a court of limited jurisdiction, the Court of Claims has no jurisdiction to grant strictly equitable relief" (Madura v State of New York, 12 AD3d 759, 760 [3d Dept 2004], lv denied 4 NY3d 704 [2005]). Thus, this Court lacks authority to award the relief Claimant seeks here, vacatur and expungement of his prison disciplinary determination (see McRae v State of New York, UID No. 2016-018-709 [Ct Cl, Fitzpatrick, J., Mar. 24, 2016]; see also City of New York v State of New York, 46 AD3d 1168, 1169 [3d Dept 2007] [holding the Court of Claims lacks subject matter jurisdiction to review administrative agencies' determinations, which can only be brought in a CPLR article 78 proceeding in Supreme Court], lv denied 10 NY3d 705 [2008]). Consequently, this cause of action must be dismissed.
Accordingly, it is hereby:
ORDERED that Motion No. M-95167 is granted and Claim No. 130933 is dismissed in its entirety.
February 10, 2020
Albany, New York
CATHERINE E. LEAHY-SCOTT
Judge of the Court of Claims The Court considered the following in deciding this motion: (1) Notice of Motion to Dismiss, dated January 16, 2020. (2) Affirmation of Christopher J. Kalil, Esq., Assistant Attorney General, dated January 16, 2020 with attachments. (3) Claim No. 130933 filed on February 1, 2018.