Opinion
# 2016-015-190 Claim No. 128068 Motion No. M-89081
12-05-2016
ROBERT URENA v. THE STATE OF NEW YORK
Robert Urena, Pro Se Honorable Eric T. Schneiderman, Attorney General By: Belinda A. Wagner, Esquire Assistant Attorney General
Synopsis
Defendant's motion to dismiss claim as untimely was granted.
Case information
| UID: | 2016-015-190 |
| Claimant(s): | ROBERT URENA |
| Claimant short name: | URENA |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption is amended sua sponte to reflect the only properly named defendant. |
|---|---|
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128068 |
| Motion number(s): | M-89081 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Robert Urena, Pro Se |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: Belinda A. Wagner, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | December 5, 2016 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant moves to dismiss the instant claim pursuant to CPLR 3211 (a) (2), (7) and (8) on the ground the claim was not timely served.
Claimant, a pro se inmate, seeks damages for an assault and battery allegedly perpetrated by correction officers at Great Meadow Correctional Facility on June 21, 2015. In addition to various intentional tort causes of action, claimant also alleges a cause of action arising from defendant's alleged failure to properly train and supervise its employees.
Defense counsel states that a notice of intention to file a claim served on the Attorney General on July 17, 2015 was rejected due to the lack of a verification and returned to the claimant that same day (see defendant's Exhibit A). A claim was thereafter filed and served on June 13, 2016. Defendant contends that the claim was untimely served because the unverified notice of intention was a nullity and did not extend the time to file and serve a claim under Court of Claims Act § 10.
Court of Claims Act §§ 10 (3) and (3-b) require that claims for unintentional and intentional torts be filed and served within 90 days following the accrual of the claim. The difference between these two subsections is that when a notice of intention to file a claim is served within 90 days, a claim alleging an unintentional tort cause of action must be served and filed within two years after the accrual of the claim (Court of Claims Act § 10 [3]), whereas a claim alleging an intentional tort cause of action must be served and filed within one year of the claim's accrual (Court of Claims Act § 10 [3-b]). The State's waiver of immunity under Section 8 of the Court of Claims Act is conditioned upon claimant's compliance with the specific conditions to suit set forth in article II of the Court of Claims Act, including the time limitations set forth in Court of Claims Act § 10 (Lyles v State of New York, 3 NY3d 396, 400 [2004]; Alston v State of New York, 97 NY2d 159 [2001]). As a result, "[f]ailure to comply with the statutory filing and service requirements deprives the Court of Claims of subject matter jurisdiction and compels dismissal of the claim" (Maude V. v New York State Off. of Children & Family Servs., 82 AD3d 1468, 1469 [3d Dept 2011]; see also Miranda v State of New York, 113 AD3d 943 [3d Dept 2014]; Encarnacion v State of New York, 112 AD3d 1003 [3d Dept 2013]). "Both filing with the court and service upon the Attorney General must take place within the relevant statutory period" (Caci v State of New York, 107 AD3d 1121 [3d Dept 2013], citing Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]).
The timeliness of the instant claim depends upon whether claimant's notice of intention sufficed to extend the period within which to serve the claim. Court of Claims Act § 11 (b) requires that both a claim and a notice of intention to file a claim "be verified in the same manner as a complaint in an action in the supreme court." In Lepkowski v State of New York (1 NY3d 201 [2003]) the Court of Appeals held that Court of Claims Act § 11(b) embraces the remedy set forth in CPLR 3022, which provides that an insufficiently verified pleading may be treated as a nullity provided the recipient gives notice with due diligence of his (or her) election to do so. The notice of intention here was not verified as required by Court of Claims Act § 11 (b) and defendant promptly rejected it and returned it to the claimant. Accordingly, the notice of intention is a nullity and did not extend the claimant's time to serve and file a claim. Inasmuch as claimant failed to both serve and file his claim within 90 days of the date his cause of action accrued, it must be dismissed.
To the extent claimant asserts that he did not immediately receive the defendant's notice rejecting his notice of intention due to his multiple transfers to various prison facilities, he failed to demonstrate that the delay arose out of any "misfeasance or malfeasance on the part of facility officials" and the mere fact of claimant's confinement to the Special Housing Unit is insufficient to invoke the estoppel doctrine (Butler v State of New York, 126 AD3d 1247 [3d Dept 2015]; Rivera v State of New York, 5 AD3d 881 [3d Dept 2004]).
Accordingly, defendant's motion is granted and the claim is dismissed.
December 5, 2016
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims The Court considered the following papers:
1. Notice of motion dated July 25, 2016;
2. Affirmation of Belinda A. Wagner dated July 25, 2016 with exhibits;
3. Response of Robert Urena sworn to August 29, 2016;
4. Reply affirmation of Belinda A. Wagner dated September 9, 2016 with exhibit.