New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK, #2001-015-144, Claim No. 103464, Motion Nos. M-62929, M-63059


Synopsis


Inmate pro se claim for personal injury resulting from trip and fall in facility's recreation area and for alleged medical negligence dismissed for lack of jurisdiction resulting from service of claim on Attorney General by ordinary mail. Claimant's motion to amend the jurisdictionally defective claim is denied since claimant properly served a notice of intention to file a negligence claim such claim may be pursued by proper filing and service of a claim in that regard. Late claim relief may be available regarding his medical negligence/malpractice claim.

Case Information

UID:
2001-015-144
Claimant(s):
RONNIE JOHNSON
Claimant short name:
JOHNSON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103464
Motion number(s):
M-62929, M-63059
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Ronnie Johnson, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney GeneralBy: Joel L. Marmelstein
Third-party defendant's attorney:

Signature date:
April 25, 2001
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Defendant's motion to dismiss the claim on the ground that the Court lacks jurisdiction is granted. Claimant's motion for an order to amend the claim is denied and his motion for late claim relief is denied without prejudice. The claim seeks to recover for personal injuries allegedly sustained on September 21, 2000 at approximately 4:45 p.m. when claimant tripped as a result of a rut in the ground covered by a mat near the weight area at the Georgetown Correctional Facility in Georgetown, New York. Claimant further seeks to recover for alleged medical malpractice or medical negligence of a nurse at said facility who allegedly misdiagnosed the extent of claimant's injuries and failed to order appropriate diagnostic testing on September 22, 2000, the day following the initial injury. He further alleges that he was denied appropriate medical treatment.

Motion M-62929

Defendant's motion to dismiss the claim is based upon claimant's service of the claim upon the Attorney General by ordinary mail, a method not authorized under section 11 of the Court of Claims Act. On the motion the defendant admits that claimant properly served by certified mail, return receipt requested, a notice of intention to file a claim upon the Attorney General on October 16, 2000 which related exclusively to a claim for personal injuries arising from the tripping incident. No allegations concerning medical malpractice or medical negligence were contained in the notice of intention to file a claim. Thereafter, on or about November 30, 2000 the claimant attempted to serve the claim upon the Attorney General by regular mail. Although the Attorney General acknowledges receipt of the claim on December 5, 2000 the defendant moves for dismissal of the claim on the ground that service of the claim by regular mail is not authorized by section 11 of the Court of Claims Act and deprives the Court of jurisdiction to entertain the claim.

Claimant concedes that the claim was served by regular mail in his "Reply to Opposition" sworn to on January 16, 2001 but requests the Court overlook that defect because he was unfamiliar with the law and had no means to pay for legal assistance.

Court of Claims Act § 11 (a) (i) provides in pertinent part:
The claim shall be filed with the clerk of the court; and, except in the case of a claim for the appropriation by the state of lands, a copy shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for filing with the clerk of the court.
Generally, the use of ordinary mail to serve a claim upon the Attorney General is "insufficient to acquire jurisdiction over the State" (Bogel v State of New York, 175 AD2d 493, 494). Where, as in this case, the claimant concedes that he "failed to properly serve the State" the Court must dismiss the claim (see, Philippe v State of New York, 248 AD2d 827) unless the State waived the issue of defective service by failing to make a pre-answer motion to dismiss on that ground or raising the defect in its answer (see, Court of Claims Act § 11 (c) (ii); Turley v State of New York, ____ AD2d ____, 719 NYS2d 380). No such waiver is alleged here nor did a waiver occur. The defendant's objection was timely raised and dismissal is mandated even in cases such as this where the claimant alleges that the State had actual notice of the claim and was not prejudiced by the use of ordinary mail (see, Turley, supra). The claim is, therefore, dismissed.

Motion M-63059

By notice of motion entitled "Notice of Motion for Permission to file a Claim Amended" dated January 30, 2001 the claimant, citing Court of Claims Act § 10 (6), seeks an order permitting him to add additional factual allegations to his claim. A review of the claimant's affidavit reveals that he is not seeking to add any new or different causes of action to the claim but is merely seeking to add additional facts regarding the prompt reporting of the September 2000 trip and fall incident to DOCS personnel and to allege that he did not witness DOCS' personnel prepare any accident reports regarding the incident even after conferring with the claimant. The gravamen of his motion is, therefore, a motion to amend the pleading pursuant to CPLR Rule 3025 rather than a motion seeking late claim relief pursuant to Court of Claims Act § 10 (6)[1].

Although motions to amend pleadings are generally freely granted (CPLR Rule 3025 (b)) absent a demonstration of prejudice by the party to be effected by the amendment, it is well established that "[a] jurisdictionally defective claim is not amenable to amendment" (Manshul Constr. Corp. v State Ins. Fund, 118 AD2d 983, 985; see also, Grande v State of New York, 160 Misc 2d 383). Since the instant claim is being dismissed for lack of jurisdiction stemming from the inadequate service of the claim this motion to amend the claim must be denied.

Despite the dismissal of the claim, the claimant may still seek relief pursuant to Court of Claims Act § 10 (6) if he acts prior to the expiration of the Statutes of Limitation relevant to his alleged causes of action for medical malpractice or medical negligence. Late claim relief is unnecessary with regard to claimant's cause of action for negligence as set forth in his properly served notice of intention to file a claim provided appropriate service of a claim in conformity with Court of Claims Act § 11 (b) occurs within the time period set forth in Court of Claims Act § 10 (3).

April 25, 2001
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion to dismiss claim dated January 8, 2001;
  2. Affirmation of Joel L. Marmelstein dated January 8, 2001with exhibits;
  3. Affidavit of Ronnie Johnson sworn to January 16, 2001;
  4. Reply affirmation of Joel L. Marmelstein dated January 24, 2001 with exhibits;
  5. Notice of motion reply amended claim [sic] dated January 30, 2001;
  6. Affidavit of Ronnie Johnson sworn to January 30, 2001;
  7. Reply affirmation of Joel L Marmelstein dated February 12, 2001 with exhibits.

[1]A motion for late claim relief pursuant to section 10 (6) of the Court of Claims Act must be supported in such manner that permits the Court to consider the factors set forth in the statute and must be accompanied by a copy of the proposed claim. No proposed claim was herein submitted, nor were sufficient facts alleged to allow the Court to treat the motion as one for late claim relief.