New York State Court of Claims

New York State Court of Claims

FISHER v. THE STATE OF NEW YORK, #2003-015-376, Claim No. 106160, Motion Nos. M-67477, M-67506, CM-67515


Synopsis


Court dismissed claim by dentist seeking to recover for services rendered to crime victim where claim was served by express mail - not a method of service authorized by Court of Claims Act § 11 (a) (i). Method of service used deprived Court of jurisdiction to hear and decide the claim. Court denied defendant's motion to strike the note of issue as moot based on the dismissal Court also denied claimant's cross-motion for late claim relief finding that proposed claim by service provider to recover cost of dental services failed to state a cause of action since recovery of an award pursuant to article 22 of the Executive Law is not a legal entitlement but rather a matter of grace provided to an innocent crime victim.

Case Information

UID:
2003-015-376
Claimant(s):
FRED FISHER
1 1.The caption of this claim was amended sua sponte by order dated September 11, 2002 to reflect the only properly named defendant.
Claimant short name:
FISHER
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption of this claim was amended sua sponte by order dated September 11, 2002 to reflect the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106160
Motion number(s):
M-67477, M-67506
Cross-motion number(s):
CM-67515
Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Fred Fisher, Pro Se
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Kathleen M. Resnick, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 6, 2004
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant's motion to dismiss the claim for lack of jurisdiction due to claimant's failure to serve the claim by one of the methods of service prescribed by Court of Claims Act § 11 (a) (i) is granted. Defendant's separate motion to strike the note of issue is denied as moot. Claimant's cross-motion seeking late claim relief pursuant to Court of Claims Act § 10 (6) is denied. The claim filed with the Court on June 3, 2002 alleges that the "[d]efendant failed/refused to pay for dental services rendered by me to crime victim Jan Stevens" and seeks the amount of $2,410.00 as the value of the services performed. At a preliminary telephone conference initiated by the Court on August 28, 2002 claimant was advised by Assistant Attorney General Kathleen Resnick that the Attorney General had not been served with a copy of the claim as required by the Court of Claims Act. For reasons unexplained claimant belatedly served the claim upon the Attorney General's Office by express mail on September 23, 2003.

The defendant now moves to dismiss the claim for lack of jurisdiction arguing that service of the claim was effected in both an untimely manner and by a method of service not countenanced by the Court of Claims Act. The defendant also moves by a separate motion (M-67506) to strike the note of issue filed by claimant on October 6, 2003 on the grounds that issue has not yet been joined and the matter is not ready for trial.

Claimant opposed the motion to dismiss the claim and cross-moved for late claim relief. The defendant opposed the cross-motion.

Court of Claims Act § 11 (a) (i) provides:
a. (i) The claim shall be filed with the clerk of the court; and, except in the case of a claim for the appropriation by the state of lands, a copy shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for filing with the clerk of the court. Any notice of intention shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for service upon the attorney general. Service by certified mail, return receipt requested, upon the attorney general shall not be complete until the claim or notice of intention is received in the office of the attorney general. Personal service upon the attorney general shall be made in the same manner as described in section three hundred seven of the civil practice law and rules.

The methods of service prescribed by section 11 of the Court of Claims Act must be strictly followed. It has been held that the service of a claim by United States Postal Service Express Mail, the method used by this claimant, "does not satisfy the requirements outlined in Court of Claims Act § 11 (a)" (Commack Self Serv. Kosher Meats v State of New York, 270 AD2d 687, 688; Hodge v State of New York, 213 AD2d 766) and subjects the claim to dismissal for lack of jurisdiction (see, Martinez v State of New York, 282 AD2d 580).

The proof offered on the motion demonstrates that the claim was served upon the Attorney General's Office by express mail on September 23, 2003. The failure to serve the claim in compliance with the manner of service requirements of section 11 (a) of the Court of Claims Act deprives the Court of jurisdiction requiring dismissal of the claim. Accordingly, the defendant's motion to dismiss the claim for lack of jurisdiction is granted.

As noted above claimant cross-moved for late claim relief and the defendant opposed the cross-motion.

Subdivision 6 of section 10 of the Court of Claims Act permits this Court, if the applicable Statute of Limitations set forth in article 2 of the CPLR has not expired, to allow the filing of a late claim upon consideration of the following factors: “whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and, whether the claimant has any other available remedy".

The first issue for determination upon a late claim motion is whether the application is timely. Since the proposed claim appears to assert a negligence cause of action, the three year Statute of Limitations set forth in CPLR § 214 applies and the motion is properly before the Court.

Turning to the statutory factors, this Court has broad discretion in deciding a motion to permit the late filing of a claim (Ledet v State of New York, 207 AD2d 965), and the statutory factors are not exhaustive or one factor controlling (Matter of Gavigan v State of New York, 176 AD2d 1117). The most important factor is whether the potential claim has merit, as it would be a futile exercise to permit litigation of a clearly baseless lawsuit (Savino v State of New York, 199 AD2d 254).

The excuse advanced for the failure to timely serve and file a claim is movant's ignorance of the law applicable to service of a claim in this Court. Ignorance of the law is not an acceptable excuse (Griffin v John Jay College, 266 AD2d 16) and this factor weighs against granting the motion.

The intertwined issues of notice, opportunity to investigate and prejudice to the State will be considered together. From the documentation submitted by both parties on the cross-motion it appears that Dr. Fisher rendered dental services to January (Jan) Stevens on July 16, 2001 which apparently involved the replacement of a dental bridge effecting teeth numbered 4, 5, 12, 13 and 14 at a cost of $450.00 per tooth plus two additional services at a cost of $45.00 per item (see cross-movant's Exhibit C). The correspondence submitted by the defendant in opposition to the cross-motion clearly demonstrates that the defendant had notice of Dr. Fisher's demands for payment and the opportunity to investigate his claim thus negating prejudice (Remley v State of New York, 174 Misc 2d 523). Under the present circumstances the Court finds that the factors of notice, opportunity to investigate and lack of prejudice favor granting the motion.

As to the appearance of merit movant must only demonstrate that the proposed claim is "not patently groundless, frivolous or legally defective" and "there is a reasonable cause to believe a valid cause of action does exist" (Rosenhack v State of New York, 112 Misc 2d 967, 969-970).

Under the circumstances alleged on this motion it cannot be said that movant appears to have a valid cause of action against the State of New York. In Matter of Meditrust Fin. Servs. Corp. v New York Crime Victims Bd., 226 AD2d 881 the Appellate Division, Third Department dismissed an article 78 petition brought by the purchaser of the accounts receivable of several health care providers which had rendered services to crime victims. Supreme Court had denied the respondent's motion to dismiss and granted the petition which sought to compel the respondent to issue final determinations relative to claims for expenses incurred by the crime victims at the health care provider's facilities. The Appellate Division reversed stating the following at pp 882-883:
[A] review of Executive Law article 22 plainly reveals that although petitioner, as an assignee, qualifies as a " 'Representative' " (Executive Law § 621 [6]), representatives are neither eligible to receive awards in their own right (see, Executive Law § 624 [1]) nor entitled to file a claim on behalf of one who is (see, Executive Law § 625 [1]). Additionally, both the legislative history accompanying and case law interpreting Executive Law article 22 makes it quite clear that the aid available thereunder is provided to the innocent victims of crime 'as a matter of grace' (Executive Law § 620); there is no legal entitlement to relief under this article and, in enacting Executive Law article 22, the Legislature did not intend "to remedy all of the damages which might result from a crime" (Matter of Rigaud v Crime Victims Compensation Bd., 94 AD2d 602, 603; see, Matter of Gryziec v Zweibel, 74 AD2d 9, 13).

As was the case with the assignee/representative in Meditrust supra, the claimant herein is not eligible to receive an award in his own right nor would he be authorized to file a claim on behalf of his patient. Movant has presented no proof of any contract between himself and the defendant, whether express or implied, and the reasoning which prompted the Appellate Division to reject Meditrust's request for an order compelling final determinations in that article 78 proceeding requires a finding here that movant's request for a money judgment is similarly groundless. Accordingly, the court finds that the proposed claim lacks merit and this important factor weighs against granting the motion.

As to the final factor it appears that movant may seek to recover damages in an appropriate court from January Stevens, the actual beneficiary of the services rendered.

Upon consideration of all of the above factors the Court finds that the motion for late claim relief should be and hereby is denied.


January 6, 2004
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:

Motion No. M-67477:
  1. Notice of motion dated October 1, 2003;
  2. Affirmation of Kathleen M. Resnick dated October 1, 2003 with exhibit;

Motion No. M-67506:

  1. Notice of motion dated October 8, 2003;
  2. Affirmation of Kathleen M. Resnick dated October 8, 2003 with exhibit;

Motion No. CM-67515

1. Notice of cross-motion dated October 10, 2003;
  1. "Answer in Opposition" dated October 10, 2003 with exhibits;
  2. Affirmation of Kathleen M. Resnick dated October 29, 2003 with exhibits;
  3. "Answer" dated October 31, 2003