New York State Court of Claims

New York State Court of Claims

MAZZAFERRO v. STATE OF NEW YORK, #2004-028-546, Claim No. 108749, Motion No. M-68222


Synopsis


Defendant's motion to dismiss Claimant's amended claim pursuant to CPLR 3211 on the grounds that the Court has no jurisdiction to hear the amended claim because Claimant failed to comply with the service requirements of Court of Claims Act section 11 is granted.

Case Information

UID:
2004-028-546
Claimant(s):
KENNETH P. MAZZAFERRO The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Claimant short name:
MAZZAFERRO
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :
The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108749
Motion number(s):
M-68222
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
KENNETH P. MAZZAFERRO, pro se
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Kathleen M. ResnickAssistant Attorney General
Third-party defendant's attorney:

Signature date:
July 21, 2004
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on the Defendant's motion to dismiss Claimant's amended claim pursuant to CPLR 3211:

1. Notice of Motion and Supporting Affirmation of Assistant Attorney General Kathleen Resnick (Resnick Affirmation) with annexed Exhibit A, filed March 24, 2004.

2. Affirmation in Opposition of Kenneth Mazzaferro (Mazzaferro Affirmation), with annexed Exhibits, filed April 12, 2004.

3. Reply Affirmation of Assistant Attorney General Kathleen Resnick (Resnick Reply) with annexed Exhibit B, filed April 15, 2004

4. Reply Affirmation of Kenneth Mazzaferro (Mazzaferro Reply) with annexed Exhibit A, filed April 20, 2004.

The Claimant, Kenneth Mazzaferro, seeks damages for the alleged libelous and slanderous accusations of sexual harassment made by the New York State Emergency Management Office and the New York State Office of Mental Health. Claimant filed a claim with the Clerk's Office on January 8, 2004 which was assigned Claim No. 108749. On February 17, 2004, Claimant filed an amended claim further alleging a cause of action for conspiracy to breach his union contract. Defendant moved by motion for a dismissal of the amended claim pursuant to CPLR 3211 (a) (2) and (8) for lack of jurisdiction due to improper service. In support of its motion the Defendant submits the affirmation of Assistant Attorney General Kathleen Resnick in which counsel alleges that the amended claim was improperly served upon the Attorney General by facsimile transmission because the Attorney General does not consent nor accept service of papers by facsimile (Resnick Affirmation). Claimant opposes the motion by affirmation alleging he was "erroneously informed" that service by facsimile was acceptable and that he subsequently mailed a copy of the amended claim to the Attorney General's office after receiving notice of the instant motion (Mazzaferro Affirmation). The Defendant further requests that Claimant's affirmation be treated as a nullity and Defendant's motion be treated as unopposed because Claimant failed to submit the proper opposition documents before the court (Resnick Reply). Moreover, the Defendant asserts that Claimant's amended claim avers a new cause of action which is subject to dismissal as untimely because Claimant failed to allege it in his Notice of Intention to file claim (Resnick Reply, Exhibit B). For purposes of this CPLR 3211 (a) (2) and (8) pre-amended answer motion to dismiss, the Court assumes the truth of the facts as alleged by the Claimant and draws all inferences from such facts in favor of the non-moving party (Bassile v Covenant House, 152 Misc 2d 88, affd 191 AD2d 188, lv denied 82 NY2d 656).

In opposition to the motion Claimant
submitted what he characterizes as an "affirmation in support of motion not to dismiss
." Even if the Claimant's unsworn submission was entitled to judicial cognizance (see Doumanis v Conzo, 265 AD2d 296; Sam v Town of Rotterdam, 248 AD2d 850) the document does not deny that the amended claim was served by facsimile transmission but merely alleges that the amended claim was subsequently mailed to the Attorney General after objection to service was made by the instant motion.

Although the method for service of an amended claim is not provided for in the Court of Claims Act, where the Act is silent the Civil Practice Law and Rules govern (22 NYCRR 206.1[c]; Baggett v State of New York, 124 AD 2d 969). Once jurisdiction has been obtained over a Defendant who appears, an amended claim may be served in accordance with CPLR 2103 which provides for service by United States mail (Rohany v State of New York, 144 Misc 2d 940). Defendant's allegations concerning service of the amended claim by facsimile transmission are not disputed by Claimant (Mazzaferro Affirmation). However, Claimant's subsequent mailing of his amended claim (Mazzaferro Reply) is sufficient to correct any defects in service provided it was timely.

It is well established that the Court cannot "obtain jurisdiction to adjudicate a
claim unless the claimant timely files a claim or a notice of intention to file a
claim" within 90 days of accrual (Selkirk v State of New York, 249 AD2d 818, 819; see also Dreger v New York State Thruway Auth., 177 AD2d 762). Pursuant to Court of Claims Act § 10 (3) claims sounding in tort must be served and filed within ninety days of accrual unless a Claimant has served a notice of intention to file a claim. The purpose of a notice of intention is "to provide the State with fair and timely notice by bringing the general nature of the claim to its attention" (Williams v State of New York, 77 Misc 2d 396). While Court of Claims Act § 11 (b) does not require "absolute exactness" it requires a statement made with sufficient definiteness to give notice and enable the State to promptly investigate. The statement must be specific enough so as not to mislead, deceive or prejudice the State (Grande v State of New York, 160 Misc 2d 383). Claimant's amended claim alleges a new cause of action for breach of contract that was not included in his original notice of intention served upon the attorney general on January 8, 2002 (Resnick Reply, Exhibit B). Although Claimant admits that his notice of intention may have been filed prematurely (Mazzaferro Reply), he cannot correct a jurisdictional defect by amending his claim to include new causes of action he erroneously omitted in his original notice of intention. Claimant's action for breach of his union contract is barred by the 90 day statute of limitations for serving the Attorney General as set forth in the Court of Claims Act § 10. Moreover, assuming arguendo, that service was proper, the Court would nevertheless grant Defendant's motion because New York does not recognize the independent tort of conspiracy (Dobies v Brefka, 273 AD2d 776).

For the foregoing reasons, the Defendant's motion is granted and Claimant's amended claim is hereby dismissed in its entirety.



July 21, 2004
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims