New York State Court of Claims

New York State Court of Claims

GIACCHI v. STATE OF NEW YORK, #2003-018-214, Claim Nos. 106236, 106383, Motion Nos. M-65670, CM-65762


Defendant's motion to dismiss claim(s) is granted pursuant to §§ 10 and 11 of the Court of Claims Act. Claimant's cross-motion to file late claim is granted in accordance with Court of Claims Act §10(6).

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106236, 106383
Motion number(s):
Cross-motion number(s):
Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
April 30, 2003

Official citation:

Appellate results:

See also (multicaptioned case)

Defendant brings a motion to dismiss the claim on the grounds that the Court lacks

personal and subject matter jurisdiction. Claimant opposes the motion and cross-moves for

permission to file a late claim.

Defendant asserts that claimant failed to properly serve the first claim (Claim No. 106236) filed with the Clerk of this Court on June 17, 2002 and that the later claim (Claim No. 106383) filed with the Clerk on July 18, 2002, was untimely and thus "of no effect."
Defendant brings a motion to dismiss these claims on the grounds that the Court lacks personal and subject matter jurisdiction. Claimant opposes the motion and cross-moves for permission to file a late claim.
The first claim alleges that the State was negligent for allowing razor wire on the fence by the handball court at Ogdensburg Correctional Facility to hang dangerously low causing claimant to injure his finger while doing jumping jacks on April 16, 2002. Undisputedly, the claim was served upon the attorney general on May 28, 2002 by regular mail and was unverified. Defendant interposed a timely answer to this claim with two affirmative defenses: that the claim was unverified as required by Court of Claims Act § 11, and that the Court lacks personal and subject matter jurisdiction over the defendant because the claim was served by regular mail and not by certified mail, return receipt requested as required by Court of Claims Act § 11. The affirmative defenses were obviously pleaded with sufficient particularity in compliance with Court of Claims Act § 11(c) because they prompted claimant to attempt to correct the deficiencies. Claimant filed and served another claim, (Claim No. 106383) properly verified, upon the attorney general by certified mail, return receipt requested on July 17, 2002. Unfortunately that claim was served on the 92nd day after the claim accrued. Prior to the expiration of the time to answer this subsequent claim, defendant brought this motion to dismiss.

Court of Claims Act § 11(a) requires that service be made upon the attorney general personally or by certified mail, return receipt requested. Service by any other method is not acceptable and does not confer jurisdiction (
Philippe v State of New York, 248 AD2d 827; Hodge v State of New York, 213 AD2d 766). Moreover, defendant also notes claimant's failure to verify the claim filed on June 17, 2002. The failure to verify the claim in accordance with Court of Claims Act § 11 (b) is also a jurisdictional defect (See, Martin v State of New York, 185 Misc 2d 799). Jurisdictional defects cannot be corrected by amendment or ignored by the courts (See, Ferrer v State of New York, 172 Misc 2d 1,7; Grande v State of New York, 160 Misc 2d 383).
Accordingly the initial claim filed with the Clerk of the Court on June 17, 2002 must be dismissed.

Unfortunately for claimant, the subsequent claim filed July 18, 2002 (Claim No. 106383) must also be dismissed. As defendant timely and aptly sets forth in its motion to dismiss, this claim was served on July 17, 2002, 92 days after the date the claim accrued (April 16, 2002). Claimant argues that this claim should be deemed timely since he presented a "Disbursement Request" with the Law Library Officer and Coordinator on July 13, 2002, but due to the facility business office being closed on Saturday, the request was not received and approved until Monday, July 15, 2002, and the claim was not actually mailed out until July 16, 2002. Claimant obviously was aware of the fact that no disbursement requests are honored when the business office is closed, and thus he should have planned for this contingency. This is not a situation in which an estoppel should apply, the untimeliness is due to claimant's failure to plan for the normal office schedule and facility requirements. The Court is without the authority to "deem" the claim timely. Therefore, this subsequent claim is untimely and must also be dismissed (Court of Claims Act §10[3]).

Recognizing the potential dismissal of his claims, Claimant brings a cross-motion seeking permission to file a late claim in accordance with Court of Claims Act § 10(6). Defendant opposes claimant's application.

Court of Claims Act § 10(6) 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[5]).))))[)]

To determine 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 alleges that the failure to timely serve the attorney general by certified mail, return receipt requested, with a copy of the notice of intention was basically the result of ignorance of the law. This is not a valid excuse (
cf. Matter of Galvin v State of New York, 176 AD2d 1185, lv denied 79 NY2d 753).
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 alleges that the State had notice of the essential facts and an opportunity to investigate since it received the first claim on May 28, 2002, only 37 days after the claim accrued. Defendant does not dispute that the State had adequate notice, an opportunity to investigate and will not suffer substantial prejudice. Accordingly, these factors weigh in favor of granting claimant's application. The next factor, whether the claim appears to be meritorious, is often referred to as the most essential factor. The party seeking late claim relief bears a heavier burden than a party who has properly and timely filed and served a claim. 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). Claimant, an inmate at Ogdensburg Correctional Facility, alleges on April 16, 2002, while performing jumping jacks on the handball court in the recreational yard he suffered a laceration extending from his right thumb to his pointer finger when his hand came in contact with razor wire from a barbed wire fence that was "hung dangerously low." Claimant asserts that the defendant was negligent for allowing such a dangerous condition to exist.
Defendant argues primarily three points: that there was no wrongdoing on the part of the State; that it was not foreseeable that this claimant or any other person could injure himself in the way claimant was injured; and claimant's "contributory negligence is absolute." Defendant submits the affidavit of Gary Amell, the Deputy Superintendent for Security at Ogdensburg Correctional Facility to support its contention that claimant does not have a potentially meritorious claim. Mr. Amell states that the handball courts are delineated by a series of yellow painted lines on the concrete pad. There is an average distance of 18.8 feet between the handball courts and the chain linked fence which has razor wire mounted on top. A caution line has been painted six feet from the fence in red, with the word "caution" painted at 12 foot intervals. Mr. Amell states
the caution line was in place on April 16, 2002. Pictures of the location of the accident are attached and show the layout of the handball courts, the caution lines and the word "caution" (See Defendant's Exhibits H and I). Mr. Amell states that the razor wire is mounted on top of the seven-foot chain link fence and that it did not droop below its intended position. Mr. Amell also states, that after checking with the Fire and Safety Officer of the facility, there are no records which would indicate that there were any similar incidents at this location or any other location "for a period of time in excess of five years" (Amell Affidavit ¶6).
Claimant submits a reply to defendant's opposition papers arguing that inmates regularly congregate in the area where he was injured in full view of a guard, who negligently supervised the inmates. Claimant further states that there was no red caution line on the date he was injured and that it was painted at a later time. Claimant continues to argue that the "low overhanging barbed wire was a dangerous condition" created by the defendant or existing for a sufficient period of time to provide constructive notice.

The State as a landowner has the same obligation as any other landowner, to maintain its property in a reasonably safe condition (
Basso v Miller, 40 NY2d 233; Preston v State of New York, 59 NY2d 997). To impose liability upon the State for the existence of a dangerous condition on its property there must be a showing that the State had actual or constructive notice or created the alleged dangerous condition (Van Stry v State of New York, 104 AD2d 553).
Although defendant has aptly pointed out several potentially viable defenses to the State's liability, and despite a clear dispute over several factual issues, based upon the documents before the Court, claimant has met, at least minimally, the threshold for showing a potentially meritorious claim.

The final factor is whether the movant has any other available remedy. Claimant asserts that he has no other remedy and defendant concedes this factor.

Accordingly, based upon the foregoing, defendant's motion is GRANTED and both the initial claim filed on June 17, 2002 and the subsequent claim filed on July 18, 2002 are DISMISSED. Based upon balancing all of the factors in Court of Claims Act §10(6), this Court GRANTS claimant's motion to permit the late filing and serving of the claim. Claimant is directed to file and properly serve the claim dated July 10, 2002 upon the attorney general in accordance with all applicable statutes and court rules within 60 days of the date this decision and order is filed with the Clerk of the Court.

April 30, 2003
Syracuse, New York

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 exhibits attached thereto.......................2

Reply Affidavit of Joseph Giacchi..........................................................3

Notice of Cross-Motion...........................................................................4

Affidavit of Joseph Giacchi, in support and exhibits

attached thereto............................................................................5

Filed Documents:

Claim No. 106236....................................................................................6

Claim No. 106383.....................................................................................7


As part of claimant's application for late claim relief, Court of Claims Act §10(6) requires a copy of the proposed claim be submitted with the motion. Although claimant did not attach a copy of the proposed claim to his motion papers, the Court will deem the claim, dated July 10, 2002, incorporated into this motion.