New York State Court of Claims

New York State Court of Claims

CONNORS v. THE STATE OF NEW YORK, #2004-013-040, Claim No. 106810, Motion Nos. M-67620, CM-67765


Synopsis


Defendant's motion to dismiss is denied. Notice of Intention adequately extended the time to file a claim. Failure to reject notice of intention as a nullity waives issue of lack of verification (CPLR 3022)

Case Information

UID:
2004-013-040
Claimant(s):
KELLI-ANN CONNORS
Claimant short name:
CONNORS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106810
Motion number(s):
M-67620
Cross-motion number(s):
CM-67765
Judge:
PHILIP J. PATTI
Claimant's attorney:
BURKE & BURKEBY: PATRICK J. BURKE, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General of the State of New York
BY: JAMES L. GELORMINI, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 30, 2004
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision


On January 21, 2004, the following papers were read on motion by Claimant for permission to file a late claim, and on cross-motion by Defendant to dismiss the claim:

Claimant's Notice of Motion, Affidavits and Exhibits Annexed


Defendant's Cross-Motion to Dismiss and Affirma-tion in Support of Cross-Motion and in Opposition to Motion and Exhibits Annexed


Reply Affidavit


Filed Papers: Claim, Answer, Amended Answer


Upon the foregoing papers, the cross-motion is denied, and the motion is denied as moot or adjourned sine die.

The proceedings before me describe a series of pleading adventures which require a brief chronological recitation.

On February 25, 2001, Claimant was a student at the State University of New York at Brockport (Brockport) and allegedly slipped and fell on the gymnasium floor while playing lacrosse, suffering injuries as a result of the fall. Thereafter, appearing pro se, Claimant prepared a document dated May 22, 2001 entitled "Notice of Intention to File Claim" (Exhibit B to the motion papers) and a second document, also dated May 22, 2001, entitled "Notice of Claim" (Exhibit A to the motion papers, hereinafter "original claim" for ease of reference), both of which were served upon the Defendant State of New York by certified mail, return receipt requested, on May 24, 2001 (Exhibit C). The State of New York thereafter served and filed an answer dated June 6, 2001, in which it raised, inter alia, as its third affirmative defense the allegation that a claim had not been filed within 90 days of its accrual as required by Court of Claims Act §10(3), and therefore the claim was untimely.

Sometime thereafter, but no later than March 20, 2002, Claimant "appeared" by an attorney who prepared and filed on April 1, 2002, Claimant's verified bill of particulars (Exhibit D). The letter from the Clerk of the Court acknowledging receipt of the bill also advised counsel that no claim had been filed in the Clerk's Office (Exhibit 1 to the Defendant's cross-motion). By September 13, 2002, current counsel was substituted for prior counsel (who apparently had never filed a notice of appearance in the first place) and conducted a thorough review of the file. Counsel noted the failure to have filed a claim, and other putative procedural infirmities with respect to verification.

Counsel proceeded to serve and file a claim on February 7, 2003 (Exhibit H). This generated an amended answer (Exhibit I) which raised numerous affirmative defenses, including several affecting jurisdiction, reiterating and elaborating those contained in the original answer, and raised new objections related to the lack of verification of the notice of intention and the original claim served pro se by the Claimant.

Claimant, fearful that the initial failure to have timely filed a claim within 90 days of its accrual might place the jurisdiction of the claim in question, sought to preserve her rights by bringing the instant motion for permission to file a late claim[1] pursuant to Court of Claims Act §10(6). Claimant supplies a proposed claim and supporting documentation.

In opposition thereto, Defendant brings a cross-motion seeking summary judgment dismissing the claim herein for untimeliness, and opposing the late claim relief sought. The crux of Defendant's cross-motion is that neither the notice of intention nor the original claim, both served on May 24, 2001, extended the time within which to serve or file a claim.

These procedural morasses occasionally resolve themselves simply, as is the case here. First it is clear that the original claim, served on May 24, 2001 was never filed, and in essence is a meaningless document for purposes of my discussion below. However, the notice of intention to file a claim was timely served on May 24, 2001, within 90 days of the accrual of the cause of action sounding in negligence, and it also appears without dispute that it was properly served by certified mail, return receipt requested, as required by Court of Claims Act §11(a)(i). Thus, theoretically, such notice of intention would normally suffice to extend the time within which a claimant must serve and file a claim to two years from the date of accrual (Court of Claims Act §10[3]).

Claim No. 106810 was filed on October 21, 2002, and, was personally served upon the Defendant on February 5, 2003, [2] and thus the claim was served and filed within two years of accrual of the underlying cause of action, putatively in timely compliance with Court of Claims Act §10(3).

So a preliminary question before me is whether the notice of intention is adequate to extend the time to serve and file Claim No. 106810. I find that it is. The essential grounds upon which Defendant relies in asserting the inadequacy of the notice of intention, and the purported untimeliness of the claim, are contained in its seventh affirmative defense in its amended answer. The seventh affirmative defense relies primarily upon the acknowledged absence of a verification of the notice of intention. This argument is rejected on the strength of the seminal decision of the Court of Appeals in Lepkowski v State of New York (1 NY3d 201, 210, holding that an unverified or defectively verified claim or notice of intention is subject to the remedy of CPLR 3022 for lapses in verification). Here, it is not disputed that the remedies under CPLR 3022 were not invoked, and thus are deemed waived.

To the extent that the Defendant's argument of untimeliness relies on the purported insufficiency or inadequacy of the description of the place where the claim arose or the location of the accident, it is similarly rejected. The notice of intention does recite that the accident took place on the gymnasium floor of the gymnasium located on the campus of SUNY Brockport in Tuttle North Athletic Complex. The parties did not argue this point in their papers relating to the sufficiency of the description in the notice of intention, but address it in the context of arguments relating to the late claim application, a moot point as explained below. Regardless, I find that the notice of intention adequately and sufficiently describes the place and location of the incident in question.

Accordingly, based upon the above, the State's cross-notice of motion to dismiss the claim as untimely is denied in its entirety. If the Defendant does not appeal from my denial of its motion for summary judgment dismissing the claim as untimely, the Claimant's motion for permission to file a late claim will be deemed denied as moot. If the Defendant does elect to appeal therefrom, as is its right, then the Claimant's motion for permission to file a late claim will be adjourned sine die pending the determination of said appeal. The parties will be advised under separate cover of a preliminary conference date to establish a new scheduling order.

June 30, 2004
Rochester, New York

HON. PHILIP J. PATTI
Judge of the Court of Claims




[1] Perhaps at this juncture it would be helpful to advise Claimant that the operative nomenclature in this court is a claim, not a "notice of claim".
[2] The actual Affidavit of Service recites a date of service of February 5, 2002, but that clearly is a typographical error, as the date of the jurat of the notary, February 6, 2003 and the date of filing of the said Affidavit with the Clerk on February 10, 2003 (see 22 NYCRR 206.5[a]) are essentially contemporaneous with service on February 5, 2003.