New York State Court of Claims

New York State Court of Claims

WATKINS v. New York, #2000-001-007, Claim No. 101082, Motion No. M-61022


Synopsis


Defendant's motion to dismiss is denied; claimant has filed a timely claim; and claimant's time to serve defendant with the claim has not expired.

Case Information

UID:
2000-001-007
Claimant(s):
THOMAS R. WATKINS, JR., 98R6792
Claimant short name:
WATKINS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101082
Motion number(s):
M-61022
Cross-motion number(s):

Judge:
Susan Phillips Read
Claimant's attorney:
Thomas R. Watkins, Jr., Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Eileen E. Bryant, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 26, 2000
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read and considered on defendant's motion to for an order pursuant to CPLR 3211 (a) (2) and (8) for an order dismissing the claim for failure to comply with the requirements of Court of Claims Act § 10: Notice of Motion to Dismiss and Affirmation of Eileen E. Bryant, Esq., both dated January 4, 2000 and filed January 6, 2000, with annexed Exhibits A-C; Claim, sworn to September 14, 1999 and filed September 17, 1999 and its annexed Verification, sworn to by claimant on September 14, 1999; Notice of Intention to File a Claim, stamped by the Clerk's Office as received on August 30, 1999 and returned on September 1, 1999, and its Verification, sworn to by claimant on August 17, 1999; Affidavit of Service for the Notice of Intention, sworn to by claimant on August 17, 1999 and a page labeled "Proof of Service of N/I" containing a return receipt for an article received by the Attorney-General on August 23, 1999; letter dated October 8, 1999 from the Chief Clerk to claimant; and Answer, dated October 1, 1999 and filed October 1, 1999.

Claimant Thomas R. Watkins, Jr. ("claimant"), acting pro se, alleges that officials at Greene Correctional Facility did not properly secure his personal belongings when he was placed in the Special Housing Unit on June 15, 1999. Claimant served defendant State of New York ("defendant" or "the State") with a document denominated a "Notice of Petition to File a Claim" on August 23, 1999 (Affirmation of Eileen E. Bryant, dated January 4, 2000 and filed January 6, 2000 ["Bryant Aff."], Exhibit A);[1] he filed his claim on September 17, 1999.

The State filed a verified answer on October 1, 1999, asserting as its first affirmative defense that "[t]he claim was not filed within 90 days after it accrued, as required by Court of Claims Act §§ 10 (3), 10 (3-b) and 11, and the Court lacks subject matter jurisdiction of the claim;" and, as its second affirmative defense, that "[t]he claim was not signed by claimant as required by § 130-1.1-a of the New York State Rules of Court, and is, therefore, defective" (Answer, dated October 1, 1999 and filed October 1, 1999, ¶¶ 3 and 4 respectively). Defendant now moves to dismiss the claim on both grounds; the motion is unopposed.

Court of Claims Act § 10 requires a claimant to file and serve a claim within 90 days after accrual in order to recover damages for personal injury caused by either unintentional or intentional tort; and affords a claimant who instead serves a notice of intention within this 90-day period up to two years after accrual in which to file and serve a claim for personal injury caused by unintentional tort and up to one year after accrual in which to file and serve a claim for personal injury caused by intentional tort (Court of Claims Act §§ 10 [3]; 10 [3-b]). Section 11 (a) of the Court of Claims Act specifies the proper manner of service for a claim and notice of intention; section 11 (b) sets forth the basic contents of a claim and notice of intention; and section 11 (c) waives any objection or defense based upon failure to comply with section 10's time limitations or the manner-of-service requirements in section 11 (a) unless raised with particularity in either a pre-answer motion to dismiss or the answer. Compliance with the filing and service requirements contained in sections 10 and 11 is a jurisdictional prerequisite to bringing and maintaining an action in the Court of Claims (Buckles v State of New York, 21 NY 418), and failure to comply constitutes a fatal jurisdictional defect requiring dismissal (Byrne v State of New York, 104 AD2d 782).

In this instance, the State acknowledges receipt on August 23, 1999 of an unsigned document denominated a "Notice of Petition to File a Claim," which includes all the elements specified by Court of Claims Act § 11 (b) for a notice of intention; claimant has provided the Court with an affidavit of service on the Attorney-General on August 23, 1999 of a signed document denominated "Notice of Intention to File a Claim,"[2] which appears substantively identical to the "Notice of Petition to File a Claim." Moreover, claimant served either one or both of these documents by certified mail, return receipt requested, the manner of service specified by Court of Claims Act §11 (b) for a notice of intention: when claimant filed his claim, he provided the Court with the return receipt for an article of certified mail received by the Attorney-General on August 23, 1999, which he labeled "Proof of Service of N/I." As a result, claimant timely and properly served a notice of intention, thereby extending his time to file and serve the claim.

Finally, the Court notes that the claim filed on September 17, 1999 is, in fact, signed and that claimant never provided the Court with proof of service, as the Court's rules provide and as claimant was advised to do (see, letter dated October 8, 1999 from the Chief Clerk to claimant). These circumstances and the State's motion (see, e.g., Bryant Aff., ¶ 5: "Claimant apparently filed a document identical to [the "Notice of Petition to File a Claim"] with the Court of Claims on September 17, 1999") cause the Court to conclude that claimant neglected to serve defendant with the claim filed on September 17, 1999, leading the State to misconstrue the "Notice of Petition to File a Claim"--which defendant acknowledges having received on August 23, 1999--as claimant's claim and prudently (but ultimately unnecessarily) to answer it.

The Court therefore denies the State's motion: claimant has properly served a timely notice of intention (the "Notice of Petition to File a Claim"); claimant has filed a timely claim; and claimant's time to serve defendant with the claim has not expired.

April 26, 2000
Albany, New York

HON. SUSAN PHILLIPS READ
Judge of the Court of Claims




[1]Defense counsel affirms that claimant served the one-page, unsigned "Notice of Petition to File a Claim" on August 23, 1999, but does not make this statement upon personal knowledge (Bryant Aff., ¶ 4, Exhibit A). Moreover, although defense counsel states that a copy of the envelope in which this document was received is also included in Exhibit A, this item was missing from the papers filed with the Court.
[2]Claimant also tried to file this document; however, Chapter 466 of the Laws of 1995, effective August 2, 1995, removed the requirement to file a notice of intention with the Court of Claims, which ceased accepting notices as of that date. In this case, the Court's records indicate that claimant's "Notice of Intention" was received by the Clerk's Office on August 30, 1999 and returned to him on September 1, 1999.