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
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
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
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"
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
, 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
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,
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
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
, 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
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.
., Schreck v State of New York,
81 AD2d 882; Nyberg v State
of New York, supra
at 203; Favicchio v State of New York,
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.