New York State Court of Claims

New York State Court of Claims

BRANHAM v. THE STATE OF NEW YORK, #2004-030-502, Claim No. 107649, Motion No. M-67594


Synopsis


Case Information

UID:
2004-030-502
Claimant(s):
TODD BRANHAM The caption has been amended to reflect the only proper defendant.
Claimant short name:
BRANHAM
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107649
Motion number(s):
M-67594
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
TODD BRANHAM
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: ELYSE J. ANGELICO, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
January 28, 2004
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers, numbered 1 to 5, were read and considered on Claimant's motion


to strike Defendant's ninth affirmative defense:

1,2 Notice of Motion, Affidavit in Support by Todd Branham, Claimant, and accompanying exhibits

  1. Affirmation in Opposition by Elyse J. Angelico, Assistant Attorney General and accompanying exhibits
4,5 Filed papers: Claim, Answer

After carefully considering the papers submitted and the applicable law the motion is disposed of as follows:

Todd Branham, the Claimant herein, alleges in Claim Number 107649 that Defendant's agents negligently failed to maintain the A-Block gym floor at Sing Sing Correctional Facility (hereafter Sing Sing), creating a dangerous condition that caused Claimant to slip and fall on the wet gym floor and break his wrist on December 26, 2002. Additionally, Claimant alleges that thereafter Defendant's agents did not give him adequate medical care.

In its Answer, the Defendant interposes a general denial, as well as nine affirmative defenses. In its ninth affirmative defense, the Defendant states that the Court lacks jurisdiction over the Claim due to Claimant's failure to timely serve the Claim upon the Attorney General, and his failure to timely file the Claim with the Court of Claims, within ninety (90) days of the claim's accrual, as required by Court of Claims Act §§10 and 11.

The present motion relates only to the ninth affirmative defense, and presents no facts or legal argument with respect to the balance of the Answer.

In his Affidavit in Support Claimant indicates that he had made every effort to timely serve a notice of intention[1] upon the Attorney General, via certified mail, return receipt requested as required, but was thwarted in his attempt by personnel at Sing Sing. He avers that he had timely given the notice of intention to the mail department at Sing Sing on or about March 18, 2003, and had thought that his mail had been forwarded. Some time later, however, the mail was returned, and the disbursement request form he had completed was also returned with a stamp on it indicating "insufficient funds." [Affidavit in Support, Exhibit c]. The return occurred after the ninety (90) day statute of limitations period had expired. He indicates that he obtained additional monies from family members, and then forwarded the Claim to the Attorney General and the Clerk of the Court. [See Ibid Exhibit d].

In her Affirmation in Opposition to the motion, the Assistant Attorney General withdraws the Defendant's ninth affirmative defense, referring to New York State Department of Correctional Services' Departmental Directive 4421, concerning privileged correspondence in the inmate correspondence program. See 7 NYCRR §721.1 et seq; [Affirmation in Opposition, Exhibit B]. The Departmental Directive confirms that advances of funds for special handling - such as certified mail, return receipt requested - are allowed where a statute or a rule requires it.

Accordingly, Claimant's motion to strike the Defendant's ninth affirmative defense is denied as moot.

January 28, 2004
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1] It appears that the Claimant is referring to the Claim itself as the notice of intention, given the time frame set forth in his affidavit and in the affidavit of service accompanying the filed copy of the Claim.