New York State Court of Claims

New York State Court of Claims

V. THE STATE OF NEW YORK, #2002-009-52, Claim No. 106436, Motion Nos. M-65838, CM-65878


Synopsis


Defendant's motion to dismiss for improper and untimely service was granted. Claimant's cross-motion for late claim relief was also granted.

Case Information

UID:
2002-009-52
Claimant(s):
LEON C. AVERY
Claimant short name:

Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106436
Motion number(s):
M-65838
Cross-motion number(s):
CM-65878
Judge:
NICHOLAS V. MIDEY, JR.
Claimant's attorney:
LEON C. AVERY, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: G. Lawrence Dillon, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
November 12, 2002
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Defendant has brought a motion (Motion No. M-65838) seeking an order dismissing the claim based upon improper and untimely service. Claimant has responded with a cross-motion (Cross-Motion No. CM-65878) seeking permission to serve and file a late claim.

The following papers were considered by the Court in connection with these motions:
Pre-Answer Motion to Dismiss Claim, Affirmation, with Exhibits (M-65838) 1,2


Notice of Motion, Affidavit in Support (CM-65878) 3,4


Affirmation in Opposition, with Exhibit (CM-65878) 5


Affidavit in Reply, with Exhibit (CM-65878) 6

In this claim, claimant seeks to recover damages for personal injuries allegedly suffered by him when he slipped and fell in the dish-room of the kitchen at Oneida Correctional Facility on June 6, 2002.

A claim alleging acts of negligence against the State must be served on the Attorney General and filed with the Clerk of the Court of Claims within 90 days of accrual, unless a notice of intention is served upon the Attorney General within such 90 days (Court of Claims Act, § 10[3]). If a notice of intention is so served upon the Attorney General, the claim must then be served and filed within two years from the date of accrual.

As set forth in defendant's moving papers to Motion No. M-65838, an unverified notice of intention to file a claim was served upon the Attorney General on or about June 13, 2002, by certified mail, return receipt requested (see Exhibits A and B to Items 1,2). A claim was then served upon the Attorney General on August 8, 2002 (see Exhibits C and D to Items 1,2). Defendant asserts that the claim was served by regular mail, and not by certified mail, returned receipt requested, as required by statute. Although both the notice of intention and the claim were served within 90 days of accrual, as required by § 10(3), defendant argues that both documents contained defects which rendered them ineffective in obtaining jurisdiction against the State.

A review of the notice of intention confirms that claimant failed to verify said notice as required by Court of Claims Act, § 11(b). This defect renders the notice of intention a nullity (see, Martin v State of New York, 185 Misc 2d 799; Rosario v State of New York, Claim No. 105771, Motion No. M-65104 [Collins, J., filed July 31, 2002]). As such, the unverified notice of intention did not extend the time for claimant to serve and file his claim as permitted by Court of Claims Act, § 10(3).

Even though claimant's notice of intention must be considered a nullity, claimant timely served his claim upon the Attorney General within 90 days of accrual when he served his claim on August 8, 2002. Court of Claims Act, § 11(a), however, requires that a claim must be served upon the Attorney General either personally or by certified mail, return receipt requested. In this case, there is no dispute that the claim was mailed by regular, first class mail. Defendant has attached a copy of the envelope in which the claim was mailed (see Exhibit D to Items 1,2) on which postage in the amount of $.37 is indicated. There is no additional postage or markings on the envelope to indicate that the claim was served by certified mail, return receipt requested, as required by statute. The service and filing requirements of the Court of Claims Act are jurisdictional prerequisites to the institution and maintenance of a claim against the State and therefore they must be strictly construed (Finnerty v New York State Thruway Authority, 75 NY2d 721; Byrne v State of New York, 104 AD2d 782, lv denied 64 NY2d 607).

As a result, this Court does not have the authority to cure or overlook defects in the time and/or manner of service and filing, assuming that such defenses are properly raised by the defendant either in its responsive pleading or by a motion to dismiss made prior to service of said responsive pleading, as required by Court of Claims Act, § 11(c). In this case, since defendant has properly raised the jurisdictional defect in its pre-answer motion to dismiss, Claim No. 106436 is subject to dismissal.

Apparently realizing that his claim was not properly served, claimant has brought a cross-motion seeking permission to serve and file a late claim, which must now be considered by the Court.

Initially, defendant contends that late claim relief should be denied, since claimant failed to attach a proposed claim to his moving papers as required by Court of Claims Act, § 10(6). However, a review of claimant's affidavit in support (see Item 4) makes it patently obvious that claimant, in his cross-motion, is seeking permission to serve and file a late claim identical to the claim that is the subject of defendant's motion to dismiss. As he explained in his reply affidavit (see Item 6), as well as in his letter of transmittal accompanying his cross-motion papers, claimant did not submit a copy of his proposed claim since both the Court and the defendant already had in their possession a copy of the proposed claim. Defendant's objection to late claim relief on this basis, therefore, is without merit.

In order to determine an application for permission to serve and file a late claim, the Court must consider, among other relevant factors, the six factors set forth in § 10(6) of the Court of Claims Act. The factors set forth therein are: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears meritorious; (5) whether substantial prejudice resulted from the failure to timely file and the failure to serve upon the Attorney General a timely claim or notice of intention to file a claim; and (6) whether any other remedy is available. The Court is afforded considerable discretion in determining whether to permit the late filing of a claim (see, Matter of Gavigan v State of New York, 176 AD2d 1117).

With regard to excuse, claimant asserts that his failure to verify his notice of intention, and his failure to properly serve his claim, resulted from improper advice received from an inmate law clerk. However, it is well settled that neither ignorance of the law (see, Modern Transfer Co. v State of New York, 37 AD2d 756), nor inadvertence (see, 500 Eighth Ave. Associates v State of New York, 30 AD2d 1010) can be considered reasonable excuses for the failure to properly and timely serve a claim.

The factors of notice, opportunity to investigate, and substantial prejudice will be considered together. Although claimant's notice of intention to file a claim was unverified, and his claim was improperly served, it is undisputed that the Attorney General received both documents within 90 days following accrual of the claim. As previously stated herein, defendant received claimant's notice of intention on or about June 13, 2002, which was one week after the incident occurring on June 6, 2002. The claim was then served on August 8, 2002, approximately two months after the date of the incident. Therefore, even though both documents were legally deficient, these documents did provide the State with actual notice that a potential claim existed, with sufficient facts contained therein to provide the State with an opportunity to investigate the claim. It is inconceivable to this Court that the State can now argue that it did not have notice or an opportunity to investigate the facts surrounding this incident. Accordingly, the Court finds that the State will not be prejudiced whatsoever should this application be granted.

The next factor, often deemed the most critical, is whether the proposed claim has the appearance of merit. In order to establish a meritorious cause of action, claimant has the burden to show that the proposed claim is not patently groundless, frivolous, or legally defective, and that there is reasonable cause to believe that a valid claim exists (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1).

In his claim, claimant seeks to recover damages for personal injuries suffered by him when he slipped and fell in the dish-room of the kitchen area at Oneida Correctional Facility, while he was incarcerated there. Claimant further alleges that the floor of this area was maintained in a dangerous manner by the State, in that it did not have proper drainage to disperse water which accumulated in this kitchen area.

It is well settled that the State has a duty to maintain its premises in a reasonably safe condition (Preston v State of New York, 59 NY2d 997), and that this obligation extends to the State's correctional facilities (Kandrach v State of New York, 188 AD2d 910). For purposes of this application, therefore, the Court finds that claimant has asserted a meritorious claim against the State.

It does not appear that claimant has any other remedy.

The Court may in its discretion place as much or as little weight on any of the six factors to be considered pursuant to the statute. Under the current law "[n]othing in the statute makes the presence or absence of any one factor determinative" (Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979) and none of the factors can require denial as a matter of law.

Therefore, even though Claim No. 106436 must be dismissed upon jurisdictional grounds, the Court finds that claimant has clearly made a showing sufficient for this Court to permit the service and filing of a late claim seeking the identical relief sought therein.

Accordingly, it is

ORDERED, that Motion No. M-65838 is hereby GRANTED; and Claim No. 106436 is hereby DISMISSED; and it is further

ORDERED, that Cross-Motion No. CM-65878 is hereby GRANTED, and claimant is directed to serve his claim upon the Attorney General and to file the claim with the Chief Clerk of the Court of Claims within 45 days from the date of filing of this decision and order in the Clerk's office, with such service and filing to be in accordance with the Court of Claims Act, with particular reference to Sections 10, 11 and 11(a), and the Uniform Rules for the Court of Claims.


November 12, 2002
Syracuse, New York

HON. NICHOLAS V. MIDEY, JR.
Judge of the Court of Claims