New York State Court of Claims

New York State Court of Claims

JONES v. STATE OF NEW YORK, #2002-018-172, Claim No. 105792, Motion Nos. M-65003, CM-65106


Synopsis


Defendant brought a motion to dismiss. The Court reserves decision on defendant's motion and claimant's cross motion to the extent they relate to the portion of the claim involving the incident at Ogdensburg Correction Facility where claimant broke his tooth on a piece of rice on January 25, 2000, and thereafter allegedly did not receive proper dental treatment on January 31, 2000. The Court will notify the parties of a hearing date to address the issue of whether claimant served the attorney general with a verified notice of intention. Defendant's motion is in all other respects, denied. Claimant's cross motion is otherwise denied in all respects.

Case Information

UID:
2002-018-172
Claimant(s):
CHARLES JONES
Claimant short name:
JONES
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105792
Motion number(s):
M-65003
Cross-motion number(s):
CM-65106
Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
CHARLES JONESPro Se
Defendant's attorney:
ELIOT SPITZER, ATTORNEY GENERAL
By: JOEL L. MARMELSTEIN, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
December 11, 2002
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Defendant brings a motion to dismiss the claim due to the inapplicability of CPLR 205(a). Claimant cross-moves for an order imposing sanctions against the Assistant Attorney General for alleged false, misleading and frivolous papers, and for the Court to consider the claim filed on March 22, 2002, as a new action under Court of Claims Act §10(3)(b) and 8(b). The subject matter of this case has previously been before the Court. Claimant originally filed a claim on May 12, 2000, and an amended claim on July 10, 2000. The original claim was dismissed on the ground that neither the claim nor the amended claim was properly verified in accordance with Court of Claims Act §11(b), which is a jurisdictional defect.[1]

Claimant now brings a "new" claim, asserting the same causes of action and factual


allegations, relying on CPLR 205(a) which states in pertinent part:
If an action is timely commenced and is concluded in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff . . . may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period.

The applicability of CPLR 205(a) was intended to "ameliorate the potentially harsh effect of the Statute of Limitations" so that an apparently meritorious claim can be adjudicated on the merits (
George v Mt. Sinai Hosp., 47 NY2d 170, 177). However, the requirements for commencing an action in the Court of Claims are not statutes of limitations, but jurisdictional conditions for bringing an action against the State (Johnson v State of New York, Ct. Cl. unpublished decision and order of J. Bell, signed September 4, 2001, Cl. No. None, Motion No. M-63583; Skiptunas v State of New York, Ct. Cl. unpublished decision and order of J. Collins, signed November 20, 2000, Cl. No. 102744, Motion No. M-62254, UID No. 2000-015-103[2]). The State as sovereign, with approval of the legislature, has agreed to waive its common law immunity under very specific conditions set forth in the Court of Claims Act Article II. A claimant bringing an action against the State must comply with the requirements set forth in Court of Claims Act §10 and §11, which conditions the existence of the right to sue the State (See, Yonkers Contr. Co. v Port Auth. Trans-Hudson Corp., 93 NY2d 375, 378; Lichtenstein v State of New York, 93 NY2d 911, 913; Dreger v New York State Thruway Authority, 81 NY2d 721; D'Aprice v State of New York, Ct. Cl. unpublished order of J. Corbett, signed March 16, 2001, Cl. Nos. 99693, 102068, Motion Nos. M-61151, M-61424, CM-61323, CM-61678, UID No. 2001-005-505; Johnson v State of New York, supra; Skiptunas v State of New York, supra). These requirements are strictly construed (Dreger v New York State Thruway Authority, supra). CPLR205(a) does not apply where the time frame for commencing the second action has passed as a result of failing to comply with a condition precedent for suit (See, Yonkers Contr. Co. v Port Auth. Trans-Hudson Corp., supra). Since claimant's prior claim was not properly verified as required by Court of Claims Act §11, it did not meet the conditions necessary to commence suit against the State and therefore, is not subject to recommencement under CPLR 205(a) (Skiptunas v State of New York, supra; see generally, Martin v State of New York, 185 Misc 2d 799, 804-805).
Turning to claimant's cross-motion which seeks the imposition of sanctions against the Assistant Attorney General and request that this Court consider this "new" claim as a new action under Court of Claims Act §10(3-b) and 8(b), the Court will address the latter portion of claimant's request first.

The most recent claim filed on March 22, 2002, asserts causes of action which arise from incidents at Ogdensburg Correctional Facility on January 25, 2000, January 31, 2000, April 16, 2000, and June 17, 2000. It alleges that claimant suffered broken teeth allegedly caused by the food preparation on January 25, 2000 and April 16, 2000. Thereafter, claimant allegedly received improper dental treatment on January 31, 2000, and April 16, 2000. An additional incident on June 17, 2000, involving a slip and fall in the gymnasium at the correctional facility is also included. Claimant asserts that for each of these incidents a timely notice of intention was served upon the Assistant Attorney General. Regarding the incidents that occurred on January 25, 2000 and January 31, 2000, the notice of intention was served on February 11, 2000, and for the incident that occurred on April 16, 2000 the notice of intention was served on May 15, 2000.[3]
Claimant alleges that for the last incident which occurred on June 17, 2000, the notice of intention was served on June 21, 2000 (See claimant's affidavit in support of cross-motion, paragraph 22). In a later document, claimant alleges that the notice of intention was served on August 15, 2000 (claimant's reply affidavit in further support of cross motion for sanctions, paragraph 15). Defendant denies service of this last notice of intention.
It is claimant's contention that because he timely served those notices of intention, his

service and filing of this latest claim on March 22, 2002, means this claim has been timely
commenced pursuant to Court of Claims Act §10(3). Court of Claims Act §10(3) provides that:
A claim shall be filed and served upon the attorney general within 90 days after the date of accrual unless a notice of intention is served upon the attorney general within the same time frame, in which case the time to file and serve the claim is extended for two years from the date the claim accrued.

However, as defendant correctly points out, although the incident which arose on April 16, 2000 is timely commenced, this is not true for the incidents which arose on January 25, 2000 or January 31, 2000. The claim filed on March 22, 2002, was not filed and served within two years from either date of accrual and therefore is not timely for these two causes of action.
To the extent that the claim alleges a cause of action based upon an incident that accrued on April 16, 2000, the notice of intention served upon the attorney general on May 15, 2000 extended claimant's time to file and serve a claim pursuant to Court of Claims Act §10(3) to two years after the date of accrual. The claim filed on March 22, 2002, as it relates to the incident on April 16, 2000, is timely and will not be dismissed.

As for the slip and fall incident on June 17, 2000, defendant denies service of the notice of intention. Claimant has set forth two separate dates of service, to wit: June 21, 2000 and August 15, 2000.[4]
However, attached to the Reply Affidavit is Exhibit A, a copy of the certified mail receipt signed by the Attorney General on August 15, 2000, purportedly proving service of the notice of intention. Claimant bears the burden of proving that service has been made, and it appears based upon the certified mail receipt that the notice of intention was in fact served upon the attorney general. As a result, the claim for the incident which arose on June 17, 2000 is also timely commenced pursuant to Court of Claims Act §10(3).
Returning to the first incidents which accrued on January 25 and January 31, 2000, claimant also asserts that the claim should be treated as a "wholly filed new action" pursuant to Court of Claims Act §10(8)(b).[5]
The Court will treat claimant's request as a motion pursuant to Court of Claims Act §10(8)(a) (See, Fox v State of New York, Ct. Cl., unpublished decision and order of J. King, filed June 7, 1999, Cl. No. 99171, Motion No. M-58800, Cross-Motion No. CM-58963).
Court of Claims Act §10(8)(a) provides:
A claimant who timely serves a notice of intention but who fails to timely serve or file a claim may, nevertheless, apply to the court for permission to treat the notice of intention as a claim. The court shall not grant such application unless: it is made upon motion before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules; the notice of intention was timely served, and contains facts sufficient to constitute a claim; and the granting of the application would not prejudice the defendant.

Claimant's application for relief under Court of Claims Act §10(8) is timely pursuant to CPLR 214(5), and the notice of intention was timely served on February 11, 2000, within 90 days of the date the claim accrued. The notice of intention also contains sufficient facts to inform the defendant of the time, location and circumstances surrounding the claim as required by the Court of Claims Act §11(b). Although the notice of intention does not set forth the amount of damages or the extent of claimant's injuries, this defect does not preclude treating the notice of intention as a claim (
Muller v State of New York, 184 Misc 2d 500, 502). The real problem with this notice of intention is that the copy served upon the Attorney General on February 11, 2000, may not have been verified.
The question of whether the notice of intention was verified when served is critical in this Court's opinion as to whether or not relief can be granted pursuant to Court of Claims Act §10(8). As stated earlier, the State has agreed to waive its sovereign immunity only where certain conditions are met, as set forth in Court of Claims Act §§10 and 11. The failure to comply with those conditions, effectively closes the door to commencing an action against the State (
Compare, Buckles v State of New York, 221 NY 418, 424). Court of Claims Act §11(b) clearly requires that the notice of intention be verified, like the claim, in the same manner as an action in Supreme Court. The failure to verify the claim has been held to be a jurisdictional defect which cannot be waived (See, Martin v State of New York, supra). When a claimant is relying on the notice of intention, not only for the right to file a claim, but to actually be treated as the claim, it must be verified (Compare, Carpenter v State of New York, Ct. Cl., unpublished decision and order of J. Collins, signed March 28, 2002, Cl. No. 105065, Motion No. M-64462, UID No. 2002-015-233).
Since it is not clear to the Court whether the notice of intention regarding the January 25 and January 31, 2000 incidents was verified when served, the Court cannot grant a motion pursuant to Court of Claims Act §10(8)(a). The Court will schedule a hearing to be held on this issue.

As for claimant's request for sanctions, the Court denies the request. Defendant's conduct in defending this action does not, in any way, warrant sanctions.

Accordingly, based upon the foregoing, the Court reserves decision on defendant's motion and claimant's cross-motion to the extent they relate to the portion of the claim involving the incident at Ogdensburg Correctional Facility where claimant broke his tooth on a piece of rice on January 25, 2000 and thereafter did not allegedly receive proper dental treatment on January 31, 2000. The Court will notify the parties of a hearing date to address the issue of whether claimant served the attorney general with a verified notice of intention. The Defendant's motion is in all other respects, DENIED.

Claimant's Cross-Motion is otherwise DENIED in all respects.


December 11, 2002
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court considered the following documents in deciding this motion:

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

Affirmation of Joel L. Marmelstein, Esquire, Assistant Attorney General

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


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


Affidavit of Charles Jones, in support, with all exhibits attached thereto.........4


Affirmation in opposition of Joel L. Marmelstein, Esquire, Assistant

Attorney General....................................................................................5


Reply Affidavit of Charles Jones........................................................................6



[1].See, Jones v State of New York, Ct. Cl., unpublished decision and order of J. Fitzpatrick, filed February 28, 2002, Cl. No. 102461, Motion Numbers M-63420, M-64075, CM-63515, CM-64103, UID No. 2002-018-121.
[2]Recent decisions from the Court of Claims referenced with a UID number are available on the internet at www.nyscourtofclaims.state.ny.us/decisions.
[3]Defendant acknowledges service of the notices of intention on February 11, 2000 and May 15, 2000 (See, Marmelstein Affirmation in Support of Motion, page 4, paragraph 3).
[4]See claimant's affidavit in support of cross-motion and reply affidavit in further support of cross-motion, respectively.
[5]Claimant has not asserted any reason why the time to commence an action would be extended or tolled, therefore, the Court presumes claimant actually seeks relief under Court of Claims Act §10(8)(a).