New York State Court of Claims

New York State Court of Claims

WESLEY v. THE STATE OF NEW YORK, #2004-016-017, Claim No. 108312, Motion Nos. M-67710, M-67879, CM-67784


Case Information

MICHAEL DONNEL WESLEY The caption has been amended to reflect that the sole proper defendant in this case is the State of New York.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended to reflect that the sole proper defendant in this case is the State of New York.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
M-67710, M-67879
Cross-motion number(s):
Alan C. Marin
Claimant's attorney:
Michael Donnel Wesley
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Grace A. Brannigan, Esq., AAG
Third-party defendant's attorney:

Signature date:
April 1, 2004
New York

Official citation:

Appellate results:

See also (multicaptioned case)


In his underlying claim, Michael Donnel Wesley alleges that residents of the Kingsboro Addiction Treatment Center set the roof of his nearby warehouse at 770 Lexington Avenue in Brooklyn on fire on May 15, 2001[1] by "throwing [garbage]. . . Liquor Bottles, half full Nail polish remover, Nue Spray Smoke [Cans], [and] half lit Cigarette[s]" on the roof. Mr. Wesley contends that as a result, "75% of the right side of the Warehouse Roof was Damage[d], [claimant] was unable to conduct . . . business out [of] the Warehouse, [losing several] Contracts, Amounting to several Millions."

Motion no. M-67710 is defendant's motion to dismiss Mr. Wesley's claim on the grounds that his notice of intention was improperly served by regular mail and was also untimely served. In cross-motion no. CM-67784, claimant requests that the Court "grant [him] the payment of $800,000.00 [in order for him] to save and repair" the warehouse. Motion no. M-67879 is claimant's motion for permission to file a late claim pursuant to §10.6 of the Court of Claims Act (the "Act").
* * * Claimant's notice of intention was served on the Attorney General's Office on September 17, 2003 by regular mail. The claim was then served by certified mail, return receipt requested, on October 31, 2003. See ¶3 of the November 25, 2003 affirmation of Grace A. Brannigan (the "Brannigan Aff.") and exhibit A thereto.
Section 10.3 of the Act provides that a claim such as this one must be served within ninety days after accrual, unless a notice of intention is served within such time frame, in which case a claim must then be served within two years after accrual. It is clear that in this case, neither a claim nor a notice of intention was served within 90 days of May 15, 2001 (or even May 15, 2002).

"It is well established that compliance with sections 10 and 11 of the Court of Claims Act pertaining to the timeliness of filing and service requirements respecting claims and notices of intention to file claims constitutes a jurisdictional prerequisite to the institution and maintenance of a claim against the State, and accordingly, must be strictly construed . . ." Byrne v State of New York, 104 AD2d 782, 783, 480 NYS2d 225, 227 (2d Dept 1984), lv denied, 64 NY2d 607, 488 NYS2d 1023 (1985) (citations omitted). See also Mallory v State of New York, 196 AD2d 925, 601 NYS2d 972 (3d Dept 1993).

In addition, section 11.a of the Court of Claims Act provides that both claims and notices of intention must be served on the Attorney General either personally or by certified mail, return receipt requested. Regular mail is not an authorized method of service and its use is insufficient to obtain jurisdiction over the State. See, e.g., Philippe v State of New York, 248 AD2d 827, 669 NYS2d 759 (3d Dept 1998).

In sum, this Court lacks jurisdiction over claim no. 108312 and defendant's motion to dismiss must be granted. Accordingly, claimant's cross-motion "grant[ing] [him] the payment of $800,000.00" in connection with claim no. 108312 must be denied.
* * *
With regard to Wesley's late claim motion, it should be noted initially that he fails to attach a proposed claim to his papers. It will be assumed, for the purposes of such motion, that claim no. 108312 is Wesley's proposed claim. In order to decide the late claim motion, six factors enumerated in the Act must be considered: whether (1) defendant had notice of the essential facts constituting the claim; (2) defendant had an opportunity to investigate the circumstances underlying the claim; (3) the defendant was substantially prejudiced; (4) the claimant has any other available remedy; (5) the delay was excusable and (6) the claim appears to be meritorious. The factors are not necessarily exhaustive, nor is the presence or absence of any particular factor controlling.[2]

The first three factors – whether the defendant had notice of the essential facts, had an opportunity to investigate or would be prejudiced by the granting of this motion are intertwined and may be considered together. See Brewer v State of New York, 176 Misc 2d 337, 342, 672 NYS2d 650, 655 (Ct Cl 1998). As set forth above, the notice of intention was served on defendant on September 17, 2003, more than two years after the May 13, 2001 fire[3], however, defendant did attach to its dismissal motion papers a copy of a letter that Kingsboro Addiction Treatment Center received from claimant on December 23, 2002. The letter states that Wesley "is [suing] Kingsboro Addiction Treatment Center . . . in the amount of 5 million dollars" and advises, among other things, that "residential patients" set the roof of 770 Lexington Avenue on fire, and that they continue to throw garbage and cigarettes on the roof. See exhibit A to the Brannigan Aff. Such letter provides no other information as to the fire or even provides its date. In addition, it is unclear to which lawsuit claimant refers in the letter; his late claim motion papers refer to other litigations he commenced in federal court and in Kings County "Supreme Court Civil Court." Moreover, such letter was sent more than one-and-a-half years after the fire, to a facility which would have a changing population of "residential patients." Overall, I find that the notice/opportunity/ prejudice factors of the Act have not been met in this case.

As to an alternate remedy, if, as claimant alleges, the fire was set by Kingsboro residents, he would have a cause of action against such persons. This factor is thus not met. As to excuse, claimant asserts that while he had an idea that Kingsboro residents started the fire, he didn't know for sure until August 20, 2002; he provides no explanation as to why he waited until September 17, 2003 to serve a notice of intention. To the extent he did not know that the Court of Claims was the proper forum for this lawsuit or did not know that his notice of intention had to be filed by certified mail, return receipt requested, such are not valid excuses for the purposes of the Act. See, e.g., Matter of E.K. (Anonymous) v State of New York, 235 AD2d 540, 652 NYS2d 759 (2d Dept 1997), lv denied 89 NY2d 815, 659 NYS2d 856 (1997).

The final factor to be considered is merit. Defendant argues that the proposed claim lacks merit because the one year statute of limitation for intentional torts has expired, citing §215 of the CPLR. In fact, the statue of limitations for damage to property is three years. See CPLR §214.4, and such period has not expired. Defendant also argues that claimant does not currently own the warehouse. However, the property record submitted as exhibit A with defendant's opposition papers on this motion appears to show that claimant had some sort of property interest which was "Recorded/Filed" on March 27, 2001, before the May 13, 2001 fire; the next entry on such form – which makes no reference to claimant – is dated August 8, 2001, after the fire.

It should be noted that claimant has submitted no documentation as to the occurence or cause of the fire with his late claim motion papers.[4] With regard to the fire's causation, claimant states that he had had an "[idea] that the resident[s] of [Kingsboro] cause[d] the Fire . . but didn't really know until August 20, 2002 when the resident[s] started another Fire in the warehouse, while [claimant] was inside the warehouse." See ¶6 of claimant's "affirmation" in support of his late claim motion. No other detail or documentation is provided as to an August 20, 2002 fire. Claimant also states that on August 20, 2002, he spoke to a Kingsboro employee, who told him that resident patients were "[responsible] for setting the Roof of 770 Lexington Avenue on Fire

. . . [and that] he witness[ed] the [residents] throwing all kinds of things on the Roof . . . furthermore he inform[ed] everybody in [Kingsboro] that the Roof . . . was on Fire, also that he call[ed] 911, on May 13, 2001 at about 5:35pm."

Even assuming that the May 13, 2001 fire was caused by debris and cigarettes thrown on the roof by Kingsboro residents, claimant has failed to implicate the State of New York; for example, there is no indication (or even allegation) in claimant's papers that prior to the fire, personnel at the facility knew or should have known that residents had been throwing such items onto the warehouse roof.

Overall, I find that claimant fails to meet the standard set forth in Matter of Santana v NYS Thruway Authority, 92 Misc 2d 1, 11, 399 NYS2d 395, 402-03 (Ct Cl 1977) for the appearance of merit: (i) the claim "must not be patently groundless, frivolous or legally defective" and (ii) upon consideration of the entire record, including the proposed claim and any exhibits or affidavits, "there is reasonable cause to believe that a valid cause of action exists."

For the foregoing reasons, having reviewed the submissions,[5] IT IS ORDERED that motion no. M-67710 be granted and claim no. 108312 be dismissed, and that cross-motion no. CM-67784 and motion no. M-67879 be denied.

April 1, 2004
New York, New York

Judge of the Court of Claims

  1. [1]In paragraph 1 of the claim, it is stated that the fire occurred on May 15, 2002, however, throughout the rest of the claim, the date is stated as May 15, 2001, including in ¶4, where claimant states that the claim accrued on May 15, 2001.
  2. [2]See Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979, 449 NYS2d 185 (1982); Scarver v State of New York, 233 AD2d 858, 649 NYS2d 280 (4th Dept 1996).
  3. [3]While, as set forth above, claim no. 108312 refers to both May 15, 2001 and May 15, 2002 as the fire's date, claimant's affirmation in support of his late claim motion refers to both May 13, 2001 and May 13, 2003. It should be noted that attached to claimant's papers on cross-motion no. CM-67784 is a document, as to which claimant has provided no explanation, entitled "Report-Structural Fire," which refers to a fire on May 13, 2001 at 770 Lexington Avenue.
  4. [4]With his motion papers on cross-motion no. CM-67784, claimant attached, without explanation, a document entitled "Report-Structural Fire." The document, apparently prepared by the Fire Department, refers to a May 13, 2001 fire at 770 Lexington Avenue and describes the premises as a "vacant factory." The document, however, is patently incomplete because all entries, including those relating to the fire's origin, are in numerical code, and claimant does not provide the explanatory material therefor. Nor does the document make any reference to the Kingsboro Addiction Treatment Center.
  5. [5]Along with the claim, the following were reviewed: defendant's notice of motion no. M-67710 with affirmation in support and exhibit A; claimant's notice of cross-motion no. CM-67784 with affidavit in support and undesignated exhibits; claimant's notice of motion no. M-67879 with "affirmation" in support and undesignated exhibits; and defendant's affirmation in opposition to motion no. M-67879 with exhibit A.