New York State Court of Claims

New York State Court of Claims

CAROSI v. THE STATE OF NEW YORK, #2004-009-74, Claim No. 109533, Motion No. M-69128


Synopsis


Defendant's motion to dismiss this claim based upon improper and untimely service was denied, but its motion to dismiss for failure to state a cause of action was granted.

Case Information

UID:
2004-009-74
Claimant(s):
RICK A CAROSI The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court.
Claimant short name:
CAROSI
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109533
Motion number(s):
M-69128
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant's attorney:
RICK A CAROSI, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Joel L. Marmelstein, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
November 9, 2004
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant has brought this motion seeking an order dismissing the claim based upon improper and untimely service, as well as claimant's alleged failure to state a cause of action.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation 1,2


Filed Papers: Claim.

Pursuant to the Court of Claims Act, claims based upon negligence unintentional torts (§ 10[3]) or intentional torts (§ 10[3-b]) must be served upon the Attorney General and filed with the Clerk of the Court of Claims within 90 days from the date of accrual, unless within such time period a written notice of intention to file a claim is served upon the Attorney General. If a notice of intention is so served, a claim for negligence or unintentional torts must then be filed and served within two years after accrual, and a claim alleging an intentional tort must be filed and served within one year after accrual.

Additionally, Court of Claims Act § 11(a) requires that a claim must be served upon the Attorney General either personally or by certified mail, return receipt requested.

These provisions of the Court of Claims Act relating to the time and manner of service and filing are jurisdictional prerequisites to the maintenance of a claim, and as such must be strictly construed (Greenspan Bros. v State of New York, 122 AD2d 249).

In this particular matter, defendant contends that claimant failed to timely and properly serve his claim. In his filed claim, claimant alleges that his cause of action accrued on April 21, 2004. In his moving papers, defendant's attorney contends that the claim was served upon the Attorney General on August 24, 2004 by regular, first class mail. It is therefore defendant's position that service of the claim was untimely, in that it occurred more than 90 days after accrual, and that service was not made in accordance with one of the permissible methods of service set forth in § 11(a). In support of his contention, defendant's attorney states that a copy of the claim which was served upon the Attorney General, and the envelope in which it was mailed, have been attached as exhibits to this motion. No such exhibits, however, were submitted with this motion.

Although he did not submit any papers in opposition to this motion, claimant, to the contrary, did attach an affidavit of service with his filed claim stating that the claim was mailed by certified mail, return receipt requested, to the Attorney General on June 22, 2004.

If true, such service would have been both timely and in compliance with § 11(a).

In considering these directly opposing statements, and without any supporting documentation from either party, this Court is not in a position to conclusively determine whether claimant failed to timely or properly serve his claim. Defendant's motion to dismiss the claim on these grounds must therefore be denied.

Defendant, however, has also moved to dismiss this claim based upon the alleged failure of claimant to state a cause of action in his claim.

In his claim, claimant alleges that "on 9/14/03, 9/15/03, 9/16/03, 4/21/04, 4/22/04 went to sick call for not being able to go to the bathroom pain, major weight loss and bleeding from my rectum."

Recently, the Court of Appeals stated that § 11(b) of the Court of Claims Act places five specific substantive conditions upon the State's waiver of sovereign immunity, and that a claim must specify (1) the nature of the claim; (2) the time when it arose; (3) the place where it arose; (4) the items of damage or injuries alleged to have been sustained; and (5) the total sum claimed (Lepkowski v State of New York, 1 NY3d 201). These requirements must be strictly construed (see Lichtenstein v State of New York, 93 NY2d 911; Dreger v New York State Thruway Auth., 81 NY2d 721), and a claim which does not satisfy these conditions is jurisdictionally defective and susceptible to dismissal (Lepkowski v State of New York, supra).

In this matter, claimant has merely alleged that he made numerous trips to sick call complaining of various ailments. Such allegations are insufficient for this Court to discern any potential basis of liability against the State. Additionally, such allegations are not sufficiently definite to provide the State with any opportunity to properly investigate the claim and determine its potential liability (see Heisler v State of New York, 78 AD2d 767). For these reasons, the Court must find that the claimant has failed to comply with the statutory requirements of § 11(b), and this claim must therefore be dismissed.

Therefore, it is

ORDERED, that Motion No. M-69128 is hereby GRANTED; and it is further

ORDERED, that Claim No. 109533 is hereby DISMISSED.

November 9, 2004
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims