Pre-Answer Motion to Dismiss Claim, Affirmation, with Exhibits
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). 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.