Opinion
# 2020-041-011 Claim No. 129220 Motion No. M-95271
08-06-2020
J. WEBBER, 09B3329 v. THE STATE OF NEW YORK
NONE HON. LETITIA JAMES By: Christina Calabrese, Esq. Assistant Attorney General
Synopsis
Court lacks jurisdiction over claim which was served more than ninety days after accrual and timely notice of intention to file claim failed to state the date claim arose, as required by Court of Claims Act 11 (b).
Case information
| UID: | 2020-041-011 |
| Claimant(s): | J. WEBBER, 09B3329 |
| Claimant short name: | WEBBER |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 129220 |
| Motion number(s): | M-95271 |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | NONE |
| Defendant's attorney: | HON. LETITIA JAMES By: Christina Calabrese, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | August 6, 2020 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant moves to dismiss the inmate-claimant's negligence/personal injury claim based upon claimant's failure to serve the claim within ninety days of accrual as required by Court of Claims Act 10 (3). In particular, defendant argues that the notice of intention to file a claim served by claimant to purportedly extend his time to serve his claim did not comply with Court of Claims Act 11 (b) and thus did not extend claimant's time to serve his claim.
Claimant has not appeared in opposition to the motion.
Court of Claims Act 10 (3) provides that:
"A claim to recover damages for injuries to property or for personal injuries caused by the negligence or unintentional tort of an officer or employee of the state while acting as such officer or employee, shall be filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after the accrual of such claim."
Courts have consistently held that "[a]s a condition of the State's limited waiver of sovereign immunity, those requirements [timely filing and service] are strictly construed and a failure to comply therewith is a jurisdictional defect compelling the dismissal of the claim" (Welch v State of New York, 286 AD2d 496, 497-498 [2d Dept 2001]; see Robinson v State of New York, 38 AD3d 1030 [3d Dept 2007]; Pizarro v State of New York, 19 AD3d 891, 892 [3d Dept 2005], lv denied 5 NY3d 717 [2005]).
The claim alleges that the claim arose on June 15, 2016 at Clinton Correctional Facility. The claim was served on the Attorney General on February 1, 2017.
The claim was served more than ninety days after accrual and is jurisdictionally defective unless claimant extended his time to serve his claim by serving a notice of intention to file a claim as provided for in Court of Claims Act 10 (3).
On August 29, 2016, within ninety days of the date the claim allegedly arose, claimant served a notice of intention to file a claim on the Attorney General.
Defendant asserts that the notice of intention to file a claim failed to state the date, and specifically the year, when the claim arose, as required by Court of Claims Act 11 (b). Defendant further argues that the notice of intention to file a claim failed to comply with the pleading requirements of Court of Claims Act 11 (b) and consequently failed to extend claimant's time to serve his claim.
Court of Claims Act 11 (b) provides, at relevant part, as follows:
"The claim shall state the time when and place where such claim arose, the nature of same, the items of damage or injuries claimed to have been sustained and, except in an action to recover damages for personal injury, medical, dental or podiatric malpractice or wrongful death, the total sum claimed . . . The notice of intention to file a claim shall set forth the same matters except that the items of damage or injuries and the sum claimed need not be stated."
A claim against the State is permissible only as a result of the State's waiver of sovereign immunity and the statutory requirements conditioning suit must therefore be strictly construed (Kolnacki v State of New York 8 NY3d 277, 280 [2007]). The Kolnacki court noted that the requirements of section 11 (b) are "substantive conditions upon the State's waiver of sovereign immunity" (quoting Lepkowski v State of New York, 1 NY3d 201, 207 [2003]) and that the failure to satisfy any of the conditions is a jurisdictional defect (Kolnacki, 8 NY3d at 280-281). The Kolnacki decision stresses that "nothing less than strict compliance with the jurisdictional requirements of the Court of Claims Act is necessary" (Kolnacki, 8 NY3d at 281).
The strict pleading requirements of Court of Claims Act 11 (b) were reiterated in Rivera v State of New York (52 AD3d 1075, 1076 [3d Dept 2008]):
"Statutory conditions placed on claims against defendant must be strictly construed, mandating a dismissal for lack of jurisdiction if the claim does not meet the substantive pleading requirements found in Court of Claims Act § 11 (b)."
The Rivera court, quoting Lepkowski (1 NY3d at 208) reminded that:
"The Court of Claims Act does not require [defendant] to ferret out or assemble information that section 11 (b) obligates the claimant to allege."
Long-settled case law requires dismissal where the claim fails to specifically state the time the claim accrued (Park v State of New York, 226 AD2d 153 [1st Dept 1996]: claim properly dismissed based upon claimants' "failure to specifically state in the notice of intention, as required by section 11 (b) of the Court of Claims Act, the time the claim accrued . . . and their failure to file their claims within 90 days from the time of accrual as required by section 10 (3), (3-b) of the Court of Claims Act"; see Harper v State of New York, 34 AD2d 865 [3d Dept 1970]; DeMairo v State of New York, 57 Misc 3d 792 [Ct Cl 2017], aff'd, 172 AD3d 856 [2d Dept 2019]).
Claimant's notice of intention to file a claim failed to comply with the substantive pleading requirements of section 11 (b).
The jurisdictionally defective notice of intention to file a claim cannot serve as a basis for extending claimant's time to serve a claim as provided for in Court of Claims Act 10 (3).
The claim was not served on the Attorney General as required by Court of Claims Act 10 and 11 and the claim is jurisdictionally defective.
The defendant's motion to dismiss the claim is granted. The claim is dismissed.
August 6, 2020
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Defendant's Notice of Motion to Dismiss, filed February 14, 2020; 2. Affirmation of Christina Calabrese, dated February 14, 2020 and annexed exhibits.