Defendant brings a motion to dismiss the claim on the grounds that the Court
personal and subject matter jurisdiction. Claimant opposes the motion
and cross-moves for
permission to file a late
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
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
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).
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). Claimant's
motion is timely. (Court of Claims Act §10(6); CPLR
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,
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.