The court read and considered the following papers on defendant's motion to
dismiss the claim for lack of jurisdiction and claimant's cross-motion for
permission to late file pursuant to Court of Claims Act §10(6): Notice of
Motion, Affirmation and Exhibit, Notice of Cross-Motion, Affirmation and
Exhibits, Claimant's "Affirmation"dated October 27, 2003.
According to the allegations of the claim, claimant, a patient at Kingsboro
Psychiatric Center, was attacked by another patient on March 18, 2002, an event
that claimant attributes to the defendant's negligence based on its alleged
knowledge of the assailant's violent tendencies and its failure to properly
guard and medicate him. A notice of intention to file a claim was served on the
defendant on June 21, 2002 and the instant claim was served and filed on June 4,
Since a notice of intention must be served within 90 days after accrual of the
claim in order to have any effect (Court of Claims Act §10) and since
June 21, 2002 was more than 90 days after March 18, 2002, defendant has, in lieu
of interposing an answer, moved to dismiss the claim for lack of jurisdiction
resulting from late service and filing.
In response, claimant has submitted a cross-motion asking for permission to
late file. In support of this cross-motion, claimant's counsel states that the
reason that the notice of intention was served late is that claimant was an
involuntary patient at the psychiatric center from the date of the incident in
question through June 18, 2002, 92 days after accrual of the claim, that he
consulted with counsel the day after he was released and that the notice of
intention was served two days thereafter. Counsel argues that since claimant
was an involuntary patient at a state psychiatric center, claimant was "unable
to file this claim on time because he was mentally incapacitated and physically
incapacitated" (Lessoff affirmation, par. 8).
Court of Claims Act §10(5) provides: "If the claimant shall be under legal
disability, the claim may be presented within two years after such disability is
Claimant's counsel is somewhat confused in that if §10(5) applies, relief
pursuant to §10(6) is not necessary, since a person who has been committed
to a state psychiatric facility is unquestionably under a legal disability
within the meaning of the statute. Boland v State of New York (30 NY2d
337); Young v State of New York (92 Misc 2d 795); Danna v State of New
York (207 Misc 505).
Although the burden of establishing that he was under a legal disability is
generally on a claimant, this is a pre-answer motion to dismiss for lack of
jurisdiction where the claimant has responded by alleging (in an unsworn
"affirmation" not supported by any documentary proof of claimant's status on the
date in question) that he was under a legal disability and defendant has failed
to respond whatsoever to claimant's submission, thus implicitly conceding its
validity. Accordingly, the motion to dismiss for lack of jurisdiction must be,
and hereby is, denied. The cross-motion is denied as unnecessary.
The court cannot help but observe that the submitted papers raise the question
of claimant's continuing competence and strongly suggest that the appointment of
a guardian ad litem be considered.