Opinion
# 2016-050-027 Claim No. 126423 Motion No. M-87948 Cross-Motion No. CM-88163
04-29-2016
ELLEN SUNDHEIMER, AS EXECUTRIX OF THE ESTATE OF NAOMIE CASSESE v. THE STATE OF NEW YORK
Finz & Finz, PC By: Ameer Benno, Esq. Hon. Eric T. Schneiderman, NYS Attorney General By: Mary Beth Ott, Assistant Attorney General
Synopsis
Defendant's motion to dismiss the claim is granted. The claim was served by regular mail on the Attorney General's Office, not by certified mail, return receipt requested, or by personal service as expressly required by the statute. Consequently, the Court lacks jurisdiction of this claim.
Case information
| UID: | 2016-050-027 |
| Claimant(s): | ELLEN SUNDHEIMER, AS EXECUTRIX OF THE ESTATE OF NAOMIE CASSESE |
| Claimant short name: | SUNDHEIMER |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126423 |
| Motion number(s): | M-87948 |
| Cross-motion number(s): | CM-88163 |
| Judge: | STEPHEN J. LYNCH |
| Claimant's attorney: | Finz & Finz, PC By: Ameer Benno, Esq. |
| Defendant's attorney: | Hon. Eric T. Schneiderman, NYS Attorney General By: Mary Beth Ott, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | April 29, 2016 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
In an action in which late claim relief was granted by decision and order of the undersigned filed June 17, 2015, the defendant now moves to dismiss the claim pursuant to Court of Claims Act (CCA) §§ 10 (2), 10 (3), 11 (a)(i) and 11 (b). The claimant cross-moves for various relief.
In its decision and order filed June 17, 2015, pursuant to which the claim now challenged by defendant was filed and served, this Court referred to the complexity of prior related proceedings emanating from the care and treatment of claimant's decedent in July 2012; this Court similarly had noted the extensive procedural history arising from the underlying events (care and treatment of claimant's decedent and her subsequent death in October 2013) in its earlier order filed September 29, 2014 (motion M-85610); such history need not be repeated herein at length for reasons herein set forth, as compliance with the specific directive of both this Court's decision and order filed June 17, 2015 and CCA § 11 (a) (i) insofar as it governs service of a claim was not achieved and, therefore, the Court lacks subject matter jurisdiction and the claim must be dismissed.
The decision and order filed June 17, 2015 was unequivocal in its direction that the claim which it was permitting (one identical to the proposed claim dated May 21, 2014 except deleting therefrom "any references to . . . derivative loss" and in its further directive that such claim "shall be filed and served in accordance with CCA§§ 11 and 11-a within thirty days of the date of filing of this decision and order." Upon the instant motion to dismiss the defendant challenges, inter alia, the manner of service of the claim filed July 14, 2015 (pursuant to said decision and order filed June 17, 2015).
It is clear that the claim filed July 14, 2015 was served by regular mail on the Attorney General's Office, not by certified mail, return receipt requested, or by personal service as expressly required by the statute (invoked by this Court in its decision and order filed June 17, 2015), CCA § 11 (a)(i) and by the weight of authority (see Brown v State of New York, 114 AD3d 632 [2d Dept 2014]; Encarnacion v State of New York, 133 AD3d 1049 [3d Dept 2015]; Jacob v State of New York, UID No. 2015-010-041 [Ct Cl, Ruderman, J., July 23, 2015]; Femminella v State of New York, 71 AD3d 1319 [3d Dept 2010]; Miranda v State of New York, 113 AD3d 943 [3d Dept 2014]). Consequently, the Court lacks jurisdiction of this claim (see Langner v State of New York, 65 AD3d 780 [3d Dept 2009]; Gonzalez v State of New York, UID No. 2014-039-429 [Ct Cl, Ferreira, J., Aug. 26, 2014]; Rhodes v State of New York, UID No. 2015-041-043 [Ct Cl, Milano, J., June 10, 2015]; Dickershaid v State of New York, UID No. 2015-040-038 [Ct Cl, McCarthy, J., Aug. 31, 2015]). The leave granted to the then proposed claimant by the decision and order filed June 17, 2016 was expressly predicated upon the compliance with the CCA's jurisdictional prerequisites through the Court's direct invocation of CCA sections 11 and 11-a. Because service did not comport with that so clearly mandated by § 11, the claim must be and is hereby dismissed. All branches of the claimant's cross motion are denied.
In circumstances similar to those presented herein, the Appellate Division, Second Department, stated in Brown v State of New York, 114 AD3d 632 (2d Dept 2014) - in relevant part - as follows:
"[a]fter the Court of Claims granted the claimant's motion for leave to serve a late claim against the defendant, the claimant served a claim on the Attorney General by regular mail. The defendant's answered raised, as a first affirmative defense, the court's lack of jurisdiction based on the claimant's failure to serve the claim personally or by certified mail, return receipt requested. In opposition to the claimant's motion, inter alia, to dismiss the first affirmative defense, the defendant cross-moved, among other things, to dismiss the claim based on improper service. In opposition to the defendant's cross motion, the claimant requested that, pursuant to CPLR 2001, the court disregard the error in service. The court granted that branch of the defendant's cross motion which was to dismiss the claim for lack of jurisdiction based on improper service of the claim, and denied claimant's motion. Court of Claims Act § 11 (a) (i) provides that a copy of the claim shall be served personally or by certified mail, return receipt requested, upon the attorney general. The requirements of section 11 of the Court of Claims Act are jurisdictional in nature and, therefore, must be strictly construed (citations omitted). Here, the claim was improperly served upon the defendant by regular mail and, thus, the court lacked jurisdiction over the defendant (citations omitted)."
"Accordingly, the court properly granted that branch of the defendant's cross motion which was to dismiss the claim for lack of jurisdiction based on improper service of the claim, and properly denied the plaintiff's motion, inter alia, to dismiss the first affirmative defense."
April 29, 2016
Hauppauge, New York
STEPHEN J. LYNCH
Judge of the Court of Claims The following papers were read and considered by the Court on the defendant's motion to dismiss and the claimant's cross motion: 1. Notice of Motion, Affirmation in Support with Exhibits A through G. 2. Notice of Cross Motion, Affirmation in Support with Exhibits A through L. 3. Affirmation in Reply with Exhibits H and I (M-87948 & CM-88163)