New York State Court of Claims

New York State Court of Claims

BROWN v. STATE OF NEW YORK, #2002-018-144, Claim No. 105317, Motion Nos. M-64470, CM-64753


Defendant's pre-answer motion to dismiss on the grounds that the claim fails to state a cause of action and that the Court lacks personal jurisdiction over the defendant for improper and untimely service of the claim is granted, and claimant's cross motion for permission to file a late claim is denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
By: G. LAWRENCE DILLON, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
June 7, 2002

Official citation:

Appellate results:

See also (multicaptioned case)

Defendant brings this pre-answer motion to dismiss on the grounds that the claim fails to state a cause of action and that the Court lacks personal jurisdiction over the defendant for improper and untimely service of the claim. Claimant opposes the motion and brings a cross-motion for permission to file a late claim.

The claim was filed with the Clerk of the Court on December 7, 2001, and alleges that on June 28, 2001, claimant fell in the gymnasium of the Oneida Correctional Facility injuring his right hand and arm. Claimant, in a later document dated January 21, 2002, labeled an "Amended Notice of Claim" states that he actually fell on June 3, 2001 in the shower at the correctional facility. Claimant states that on June 3, 2001, he went to the infirmary and was diagnosed with a fracture to his right arm which was at the same location allegedly as an old injury according to the infirmary.[1]
Claimant denies ever having a previous injury. He continued to suffer pain and was taken to Marcy Medical Facility on September 8, 2001, where claimant allegedly was diagnosed with a fracture of his scapula.[2] Claimant alleges that as a result of the failure to timely diagnose the fracture of his scapula he has suffered significant permanent loss of his right, dominant hand.
The claim was served upon the attorney general by regular mail on November 7, 2001 which claimant does not dispute. Instead, claimant argues that the claim served upon the attorney general's office on that date was timely for the medical malpractice claim which did not accrue until September 8, 2001, when claimant discovered that the correctional facility medical staff had mis-diagnosed the fracture in his arm in June. Claimant further argues that the claim provided sufficient notice of the related negligence claim, but in case the Court finds that the claim did not provide sufficient notice, he served an amended claim on "January 22, 2001"[3]
asserting the negligence cause of action. Claimant's counsel alternatively provides that he is entitled to the "protection of 10.6 of the Court of Claims Act," but if not, the action is timely because of Governor Pataki's Executive Order which temporarily suspended the statute of limitations for actions accruing on September 11, 2001 and thereafter until November 8, 2001. (Exec. Order Nos. 113.12 and 113.28 (2001))
Regardless of the date of accrual, June 3, 2001, June 28, 2001, September 8, 2001, or even if claimant could take advantage of Governor Pataki's Executive Orders extending the time frames for commencing an action or filing an appeal, the last possible day for filing and serving a claim under any scenario would have been December 7, 2001. Claimant did not properly serve a notice of intention or claim upon the attorney general as required by Court of Claims Act §11(a) by that date. As a result, the claim must be dismissed. The requirements of Court of Claims Act §§10 and 11 for timeliness and proper service are jurisdictional prerequisites to bringing an action in this Court and must be strictly construed. (
Byrne v State of New York, 104 AD2d 782, lv denied 64 NY2d 607) Court of Claims Act §11(a) requires that service upon the attorney general be by personal service or by certified mail return receipt requested. The use of ordinary mail is insufficient to acquire jurisdiction over the State. (Philippe v State of New York, 248 AD2d 827; Turley v State of New York, 279 AD2d 819 lv denied 96 NY2d 708) The failure of jurisdiction is a defect which cannot be ignored or corrected by amendment. (Manshul Const. Corp. v State Ins. Fund, 118 AD2d 983, 985; Grande v State of New York, 160 Misc 2d 383, 386) Therefore, claimant's personal service of an amended claim upon the attorney general on January 22, 2002, could not cure the defect.
Claimant requests permission to file a late claim pursuant to Court of Claims Act §10(6).[4]
This section allows a claimant who has failed to serve a notice of intention, or who has failed to file and serve a claim within the time frame set forth in Court of Claims Act §10 to make an application to the Court to file such a claim, in the discretion of the Court, at any time before an action asserting a like claim against a citizen of the state would be barred under article two of the CPLR. (Court of Claims Act §10(6)) Claimant's motion is timely. (Court of Claims Act §10(6); CPLR §214-a, 214(5))
In determining whether an application for permission to file a late claim should be granted, consideration must be given to the six factors listed in Court of Claims Act §10(6), and any other relevant factors. The presence or absence of any one factor is not determinative. (
Bay Terrace Cooperative Section IV, Inc., v New York State Employees' Retirement System, Policemen's and Firemen's Retirement System, 55 NY2d 979; Ledet v State of New York, 207 AD2d 965) Instead, it is a balancing of all of the factors by the Court which may warrant the granting of the application to file and serve a late claim.
Claimant's counsel states that he failed to advise claimant to timely file a notice of intention or claim, and he did not advise claimant to send the claim that was served on November 7, 2001 by certified mail, return receipt requested. Attorney inadvertence is not an acceptable excuse for failure to timely file a claim or notice of intention. (
Almedia v State of New York, 70 AD2d 712)
The factors of whether the State had notice of the essential facts, an opportunity to investigate the underlying claim, and whether the State will suffer substantial prejudice if the late filing and serving of the claim are permitted will all be addressed together. Claimant's attorney alleges that the State had notice of the essential facts and an opportunity to investigate since it received a claim on November 7, 2001, and claimant advised Correction Officer Alford of his fall in the shower on the day it occurred. Claimant's attorney also states that the State has not alleged prejudice.

Defendant, in response, points out that the notice the State originally received from the claim which was served on November 7, 2001, referenced a fall on June 28, 2001 in the gymnasium, rather than on June 3 in the shower. Defendant further avers that since the State did not receive timely notice, and the original notice that they did receive had the incorrect information for the date and location, there was no opportunity to investigate and it will suffer prejudice if the late claim is permitted to be filed.

These factors weigh against granting claimant's application. The State did not have timely notice of the facts underlying this claim or an opportunity to investigate. Although claimant's counsel alleges that claimant advised Correction Officer Alford of his fall in the shower,[5]
he does not have actual knowledge of the facts, and his statements will not be accepted as true for purposes of this motion. (Cf, Calzada v State of New York, 121 AD2d 988; Nyberg v State of New York, 154 Misc 2d 199, 202) Nonetheless, the prejudice to the State may be minimized in the case of the medical malpractice cause of action since presumably there are medical records documenting claimant's complaints and the treatment provided.
The next factor, whether the claim appears to be meritorious, is often referred to as the most essential factor. It is claimant's burden to establish that the proposed claim is not patently groundless, frivolous or legally defective, and upon consideration of the entire record, there is cause to believe that a valid cause of action exists. (
Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1,11) In the "amended notice of claim," Claimant alleges that on June 3, 2001, while an inmate at Oneida Correctional Facility, he was injured when he fell taking a shower. Claimant asserts that the State failed to properly construct or maintain the shower, and that the shower shoes which were available had no tread. Following his fall, he was taken to the infirmary and diagnosed as suffering a new break to an old right arm injury, which claimant denies ever having. After suffering intense pain, on September 8, 2001, claimant was taken to Marcy Medical Facility where he was diagnosed with a break of his scapula not his arm. The failure to properly diagnose claimant's fracture, has allegedly resulted in permanent injuries.
Although claimant has set forth enough to allow the Court to find reasonable cause to believe a valid cause of action for negligence exists, the same is not true for the medical malpractice cause of action. There is no affidavit from a physician setting forth factually what the State did wrong and why it departed from good and accepted medical standards.
(Cf., Schreck v State of New York, 81 AD2d 882; Nyberg v State of New York, supra at 203; Favicchio v State of New York,144 Misc 2d 212) This factor weighs against granting claimant's application for the medical malpractice cause of action.
The final factor is whether the movant has any other available remedy. The defendant states that claimant can bring suit against the medical facility and the individual doctors there that diagnosed his scapula fracture. However, there is no indication that anyone at the Marcy Medical Facility did anything wrong based upon the facts as alleged. Thus, this does not appear to the Court to be a viable alternative remedy.

Accordingly, based upon the foregoing, claimant's application is DENIED without prejudice. Defendant's motion is GRANTED and the claim is DISMISSED.

June 7, 2002
Syracuse, New York

Judge of the Court of Claims

The Court considered the following documents in deciding this motion:

Notice of Motion........................................................................................1

Affidavit of G. Lawrence Dillon, Esquire, Assistant Attorney General,

in support, with all exhibits attached thereto..................................2

Notice of Cross Motion...............................................................................3

Affidavit of Alfred P. Kremer, Esquire, in opposition to defendant's

motion and in support of the cross motion, with all exhibits

attached thereto................................................................................4

[1]The medical records were not attached. The claimant does not specify where he obtained this information.
[2]The scapula is a bone lying over the ribs. (Stedman's Medical Dictionary 1575 [26th ed. 1995]).
[3]The Court presumes the actual date was January 22, 2002.
[4]The Court has treated the "amended notice of claim" submitted with the motion papers as the proposed claim for purposes of this late Claim application. (Court of Claims Act §10(6))
[5] The "affidavit" of claimant which was submitted with the motion has claimant's "signed" named, but his name was not signed by claimant but by claimant's attorney; and oddly enough, that signature was notarized by claimant's attorney as well. The only sworn statements the Court has before it from claimant himself are copies of the claim and amended claim, neither of which address notice to Correction Officer Alford.