Opinion
# 2016-040-071 Claim No. 127543 Motion No. M-88643
09-26-2016
LESLY J. VAIL v. THE STATE OF NEW YORK
Lesly J. Vail, Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Michael C. Rizzo, Esq., AAG
Synopsis
State's motion to dismiss Claim as untimely served granted.
Case information
| UID: | 2016-040-071 |
| Claimant(s): | LESLY J. VAIL |
| Claimant short name: | VAIL |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 127543 |
| Motion number(s): | M-88643 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Lesly J. Vail, Pro Se |
|---|---|
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Michael C. Rizzo, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | September 26, 2016 |
| 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 subject matter jurisdiction over the Claim and personal jurisdiction over the Defendant as a result of Claimant's failure to timely serve the Claim as required by Court of Claims Act §§ 10 and 11(a)(i), is granted.
This pro se Claim, which was filed with the Clerk of the Court on February 22, 2016, asserts that Claimant was scheduled to meet with her then-fiancee, inmate Timothy Vail, at Shawangunk Correctional Facility on October 26, 2014. This visit did not take place because Mr. Vail was involved in a matter that day which resulted in a misbehavior report being issued (Claim, ¶¶ 2-3). Claimant seeks damages for expenses incurred as the result of the alleged improper misbehavior report: the cost of a hotel room and rental vehicle (id., ¶¶ 9, 16).
Mr. Vail was found guilty of at least one of the charges in the misbehavior report following a disciplinary hearing in November 2014 (Claim, ¶ 5). In January 2015, Mr. Vail commencing a proceeding pursuant to CPLR Article 78 in Supreme Court seeking to have the hearing disposition reversed and expunged (id., ¶ 6). On October 17, 2015, Mr. Vail received a letter, dated October 15, 2015, from the Attorney General's office stating that the Respondent in the Article 78 proceeding would not be submitting opposition papers as the determination was reversed and expunged from Mr. Vail's records (id., ¶ 7 & Ex. 3 attached). Claimant also asserts that her Claim is filed within 120 days of the Claim accrual (id., ¶ 18).
Pursuant to the Court of Claims Act provisions applicable to personal injury actions, Claimant was required to file and serve her 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 negligence cause of action (Court of Claims Act § 10[3]). 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 its Answer, filed with the Clerk of the Court on March 23, 2016, Defendant asserted as its First Defense that "[t]his Court lacks subject matter jurisdiction over the [C]laim and personal jurisdiction over the [D]efendant, the State of New York, as the [C]laim is untimely in that neither the [C]laim nor a [N]otice of [I]ntention was served within ninety (90) days of the accrual of the [C]laim as required by Court of Claims Act Section 11 and Court of Claims Act Section 10(3)."
In his affirmation submitted in support of the State's motion, Defense counsel asserts that the Claim accrued on October 16, 2015, when Inmate Vail was notified by memorandum from IRC II, M.J. Coddington, that the disciplinary hearing determination of November 2014 had been expunged (Affidavit of Michael C. Rizzo, Esq., Assistant Attorney General, ¶ 5 and Ex. 3 attached thereto [hereinafter, "Rizzo Affidavit]). It is further asserted that the Notice of Intention to File a Claim and the Claim were served together and received by the Attorney General on February 22, 2016 (Rizzo Affidavit, ¶ 6 and Ex. A attached thereto), a little over four months after the Claim allegedly accrued.
This Motion was originally returnable on June, 22, 2016. By letter dated June 9, 2016, Claimant requested an adjournment. By Daily Report dated June, 15, 2016, the Court adjourned the Motion to July 27, 2016, upon the oral consent of the State. The Court directed that Claimant's Opposition Papers, if any, be served and filed on or before July 20, 2016. Claimant did not submit any opposition to Defendant's Motion.
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 Defendant's verified Answer as set forth above, in accordance with Court of Claims Act § 11(c) (Czynski v State of New York, 53 AD3d 881, 882 [3d Dept 2008], lv denied 11 NY3d 715 [2009]; Villa v State of New York, 228 AD2d 930, 931 [3d Dept 1996], lv denied 88 NY2d 815 [1996]).
Based upon the foregoing, Defendant's Motion is granted and the Claim is dismissed for failure to timely serve and file it in accordance with Court of Claims Act §§ 10(3) and 11(a)(i).
The Court notes that, by letter dated June 7, 2016, the parties were notified that the trial of this Claim was scheduled for November 22, 2016 at the Court of Claims in Albany, New York. That trial is now unnecessary.
September 26, 2016
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, Affidavit in Support, & Exhibits Attached 1
Filed Papers: Claim, Answer