Opinion
# 2015-053-526 Claim No. 124628 Motion No. M-87568
12-14-2015
DAVID VITTOR v. THE STATE OF NEW YORK
GOLDSMITH & ASSOCIATES, PLLC Matthew H. Goldsmith, Esq. HON. ERIC T. SCHNEIDERMAN New York State Attorney General BY: Michael T. Krenrich Assistant Attorney General
Synopsis
Motion to dismiss claim granted. Claimant's contention that timely date stamp of delivery of a copy of the claim by the Clerk of the Court of Claims to the Attorney General provided jurisdiction was rejected. Claimant's failure to timely serve claim for wrongful confinement within 90 days of the accrual of the claim also required dismissal.
Case information
| UID: | 2015-053-526 |
| Claimant(s): | DAVID VITTOR |
| Claimant short name: | VITTOR |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption has been amended, sua sponte, to reflect the State of New York as the only proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124628 |
| Motion number(s): | M-87568 |
| Cross-motion number(s): | |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | GOLDSMITH & ASSOCIATES, PLLC Matthew H. Goldsmith, Esq. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General BY: Michael T. Krenrich Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | December 14 , 2015 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant David Vittor (Claimant), formerly an inmate at the Gowanda Correctional Facility and Ulster Correctional Facility, seeks damages for wrongful confinement and false imprisonment. The claim states that the alleged conduct occurred "on and before October 25, 2012 and continuing through June 10, 2014." The Defendants have filed a motion to dismiss alleging two grounds, improper service in accordance with Court of Claims Section 11 and untimeliness in accordance with Court of Claims Sections 10 and 11. The Claimant filed an affirmation opposing the motion. The parties requested oral argument of this motion, which was granted. On December 9, 2015, oral argument of this motion was conducted but Claimant's attorney waived his appearance.
On July 7, 2014, the claim was filed with the Office of the Chief Clerk of the Court of Claims. On November 25, 2014, Claimant's attorney mailed a copy of the claim to the New York State Attorney General by certified mail, but without the green return receipt requested card (Exhibit A to Defendant's Affirmation in Support of Motion to Dismiss). In its motion, the Defendant alleges that the service of the claim by certified mail with no return receipt requested deprives this Court of both personal jurisdiction over the Defendant and subject matter jurisdiction over the claim. The Defendant has preserved these defenses in accordance with Court of Claims Act Section 10 (c) by asserting with particularity in the first affirmative defense of the answer the lack of personal jurisdiction for failing to send the claim by certified mail, return receipt requested and with the third affirmative defense alleging that the claim was untimely for failure to serve the claim or notice of intention within 90 days of the accrual of the claim. (Exhibit B to Defendant's Affirmation in Support of Motion to Dismiss).
Court of Claims Act Section 11(a) (i) requires that if a claim is served upon the Attorney General by mail, it must be done by certified mail, return receipt requested. As claims against the State are allowed only by way of the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements regarding the manner of service are to be strictly construed (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]). It has been held that the failure to effect service as authorized by this statute requires dismissal of the claim (Turley v State of New York, 279 AD2d 819 [3d Dept 2001], lv denied 96 NY2d 708 [2001]).
The Claimant argues in opposition that the first page of the claim has a date stamp establishing that the Clerk of the Court of Claims timely delivered a copy of the claim to the Attorney General's Office and that this notification provides jurisdiction "in alternative satisfaction of the Court of Claims Act § 11." (Exhibit A to Defendant's Affirmation in Support of Motion to Dismiss). Claimant's position and the cases cited to as authority, Garr v State of New York, 102 Misc 2d 350, 353 (Ct Cl, 1979) and Baggett v State of New York, 124 AD2d 969 (4th Dept 1986) are misplaced in that they rely upon statutory language in Section 11 that was repealed in 1984. The final case cited, Petronis v State of New York, 170 Misc. 223 (Ct Cl, 1939), is also unavailing as it relies upon an even earlier provision of the Court of Claims Act that was replaced in 1984.
In Petronis, the Court references "new section, Section 15-a", which was added in 1936 and for the first time required that after filing a claim or notice of intention to file a claim with the Court of Claims, a copy of the claim or intention to file be served upon the Attorney General. There was then no requirement that the service upon the Attorney General by mail be by certified mail, return receipt requested. The requirement that service by mail upon the Attorney General be by certified mail, return receipt requested was not enacted by the Legislature until 1984. --------
It has been held that alternative mailings that do not equate to certified mail, return receipt requested are inadequate and do not comply with Court of Claims Act Section 11(a) (Hodge v State of New York, 213 AD2d 766 [3d Dept, 1995]). It has also been held that the failure to include the requirement of the return receipt is jurisdictional in nature and where not employed, the claim must be dismissed (Chandler v State of New York, UID No. 2014-038-526 [Ct Cl, DeBow, J., June 6, 2014]; Schaeffer v State of New York, 145 Misc 2d 135 [Ct Cl, 1989]). Accordingly, Claimant's failure to include a return receipt requested card with the certified mail envelope when serving the Attorney General deprives this court of personal jurisdiction and requires the dismissal of this claim.
The Defendant also moves for the dismissal of this claim on the alternative ground that this Court lacks subject matter jurisdiction as the claim was untimely commenced. Claimant contends in opposition that he has stated a claim for wrongful confinement for which he is entitled to a two year statute of limitations under Court of Claims Act Section 10 (3). While accepting for purposes of this motion that the claim is one for wrongful confinement, Court of Claims Act Section 10 (3) still requires that any claim for negligence or unintentional tort shall be filed and served upon the Attorney General within 90 days unless a notice of intention is served upon the Attorney General within that same 90 day period. Claimant does not assert in opposition to this motion that a notice of intention was served upon the Attorney General within 90 days of the accrual of this claim.
Claimant argues that the two year statute of limitations applies to his claim for wrongful confinement, citing as authority the cases of Ramirez v State of New York, 171 Misc 2d 677 (Ct Cl, 1997) and Gittens v State of New York, 132 Misc 2d 399 (Ct Cl, 1986). Neither case cited by Claimant stands for this proposition. The claimant in Ramirez asserted a claim for wrongful confinement for which the court held that a two year statute of limitations would apply, however, the claimant had filed a notice of intention within 90 days of the accrual of the claim. In Gittens, the defendant's motion to dismiss did not contest the timeliness of the claims but instead that the State of New York had not waived its sovereign immunity as to the type of claims asserted and that in the absence of some form of intentional conduct, no claim could be recognized under the facts asserted. Court of Claims Act Section 10 (3) is clear that a claimant has a two year statute of limitations in which to file a claim only if a notice of intention is served upon the Attorney General within 90 days of the accrual of the claim. Herein, claimant did not serve a notice of intention and the claim was served more than 90 days after its accrual. Accordingly, the Court lacks subject matter jurisdiction and the claim must be dismissed.
Based upon the foregoing, Defendant's motion is granted and the claim is dismissed both for failure to properly serve the Attorney General in accordance with Court of Claims Act Section 11 (a) (i) and failure to timely serve in accordance with Court of Claims Act Section 10 (3).
December 14 , 2015
Buffalo , New York
J. DAVID SAMPSON
Judge of the Court of Claims The following were read and considered by the Court 1. Notice of motion and affirmation of Assistant Attorney General Michael T. Krenich filed October 20, 2015, with annexed Exhibits A and B. 2. Affirmation in opposition of Attorney Matthew H. Goldsmith filed December 2, 2015.