GILLETTE v. THE STATE OF NEW YORK, #2004-032-079, Claim No. 106117, Motion Nos.
M-68282, M-68283, M-68312
Because the jurisdictional requirements of the Court of Claims Act have not been
satisfied, Claim No. 106117 is dismissed. Claimant's discovery motion (M-68282)
and motion for summary judgment (M-68283) are accordingly denied as moot.
RUSSELL GILLETTE The Court sua sponte amends the caption to reflect the only proper defendant.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
M-68282, M-68283, M-68312
JUDITH A. HARD
Russell Gillette, Pro Se
Hon. Eliot Spitzer, NYS Attorney General
By: Michael W. Friedman, Assistant Attorney General,Of Counsel
September 28, 2004
See also (multicaptioned
This claim is an action for personal injuries arising out of an incident that
occurred on August 7, 2001 at Franklin Correctional Facility ("Franklin").
Claimant alleges that he slipped and fell on a wet floor in the bathroom of F2
Dormitory, striking his head on the sink. The claim was filed with the Court on
May 24, 2002. The Attorney General's office submitted an answer to " Claim No.
Unassigned" on April 22, 2003, almost one year after Claim No. 106117 had been
filed. This answer was accepted by the Court as the answer to Claim No.
On April 5, 2004, claimant filed two motions with respect to claim number
106117: Motion No. M-68282 seeks to compel defendant to respond to
interrogatories that had been served on June 4, 2003, and Motion No. M-68283
seeks summary judgment in claimant's favor. On April 12, 2004, Assistant
Attorney General Michael W. Friedman reported to the Court that only one claim
from this claimant had been served on the Attorney General. It was served on
March 10, 2003, and it arose from an incident involving meals and the diet
served to claimant during Ramadan in December of 2002. The answer that was filed
by defendant on April 22, 2003 related to that claim, not one that dealt with a
slip and fall occurring in August 2001.
The records of the Court and of the Attorney General indicate that in May
2002, claimant filed a claim but failed to serve a copy of that claim on the
Attorney General. Then, in March 2003, claimant served a different claim on the
Attorney General but failed to file that claim with the Court. In order to give
claimant an opportunity to address this situation, the Court issued an order to
show cause directing claimant and defendant to submit all documentation
regarding the claim or claims and their manner of service. Because a
determination of these procedural issues could render claimant's discovery
motion and motion for summary judgment moot, the Court will initially address
the order to show cause and the parties' responses.
In an "affirmation" and a letter submission, claimant presented the
October 30, 2001 A notice of intention relating to the August 7, 2001 slip and
fall was served on the Attorney General by certified mail. A copy of this notice
of intention is annexed to claimant's papers.
November 5, 2001 A copy of a notice of intention regarding the August 7, 2001
slip and fall was sent to the Court, but it was subsequently returned with a
notice advising him that notices of intention need only be served on the
Attorney General. A copy of this notice of intention was annexed to claimant's
December 2001 Claimant's pink copy of a December 6 disbursement request form for
funds to send legal mail to the Attorney General's office and an original green
certified receipt card, indicating that something had been served on the
Attorney General's Appeals Bureau on December 12, 2001.
January 14, 2002 A second original green certified receipt card, indicating that
something was received by the Attorney General's Appeals Bureau.
May 6, 2002 A third original green certified receipt card, indicating that
something had been received by the Court of Claims. This would have been the
claim that was given Claim No. 106117, which was date stamped received on May 6,
2002. The affidavit of service annexed to this claim indicates that both the
Court and the Attorney General were served by ordinary mail, and the address for
the Attorney General is incorrect.
December 23, 2002 A letter from claimant to the Chief Clerk of the Court of
Claims, which was received by the Court on January 2, 2003. In this letter,
claimant states that he filed "a suit in this court or with the
Attorney General office" (emphasis supplied) on May 6, 2002.
February 10, 2003 A letter from the Chief Clerk to claimant, advising him that
the Court had not received an answer to Claim No. 106117 and noting that the
affidavit of service indicated the "claim was served by regular mail (rather
than by certified mail, return receipt requested or by personal service as
required by the statute) and misstates the address of the Attorney General's
February 28, 2003 A letter from claimant to the Court, requesting forms,
apparently to aid him in preparing a civil rights action alleging violations of
federal and state constitutional rights to be filed in Federal Court. In this
letter, claimant states that he had first commenced this cause of action in
State court by Claim No. 106117.
According to the affirmation of Michael W. Friedman, Esq., the Attorney
General's Office received from claimant on March 10, 2003 a claim with an
unspecified claim number, served by certified mail, return receipt requested
(Friedman affirmation, Exhibit A). It should be noted that claimant made no
reference to this claim in any of his submissions to the Court. Defendant's
answer to this unnumbered claim was filed with the Court on April 22, 2003.
Apparently believing that this answer was in response to Claim No. 106117, which
had been filed with the Court almost a year
claimant served the Attorney
General's Office with a response to the answer on May 2, 2003 (Friedman
affirmation, ¶ 5 and Exhibit B).
According to defense counsel, the next document received by the Attorney
General's office from the claimant was the motion to compel responses to his
interrogatories (Motion No. M-68282). This motion was served on the Attorney
General's Office on March 26, 2004, but defense counsel denies that the Attorney
General's Office had ever received interrogatories from claimant (Friedman
affirmation, ¶ 6).
Claimant alleges in his third and final submission that interrogatories were
served on the Attorney General's Office (claimant's second reply affidavit,
¶ 5). In support, claimant annexed to this submission an original green
return receipt card indicating that something was served on the defendant by
certified mail on August 12, 2003. Claimant's interrogatories, however, are
dated June 4, 2003.
The Court is also in possession of a letter from claimant dated July 28, 2003,
in which he states that he has "compleated and certified reciet of mail, move
for interrogatories" [sic]. This letter purportedly contained copies of
defendant's answer, claimant's response to defendant's answer, and the
interrogatories. A copy of claimant's interrogatories was date stamped received
by this Court on September 17, 2003. Unfortunately, neither the filed copy of
the interrogatories nor any of the copies annexed to the claimant's motion
papers (Motion No. M-68282) contain an affidavit of service.
On April 6, 2004, the Attorney General's Office received a letter from the
Court advising that two motions filed by claimant were calendered. On the same
day, it received a duplicate copy of claimant's motion to compel responses to
interrogatories and, for the first time, received a copy of claimant's motion
for summary judgment (Friedman affirmation, ¶¶ 8 and 9). By letter
dated April 12, 2004, Mr. Friedman advised the Court that the Attorney General's
Office had never been served with Claim No. 106117, thus prompting this Court's
order to show cause.
Pursuant to sections 10(3) and 11 of the Court of Claims Act, a claim for
personal injuries allegedly caused by negligence must be filed with the Court
and served upon the Attorney General within 90 days after the accrual of the
claim, unless claimant serves upon the Attorney General a notice of intention to
file a claim within the same 90 day period and then files and serves a claim
within two years from the date of accrual. The filing and service requirements
of the Court of Claims Act are jurisdictional in nature and must be strictly
construed (Lurie v State of New York, 73 AD2d 1006 [3d Dept 1980] affd
52 NY2d 849 ). Failure to comply with these requirements deprives the
Court of the power to hear the claim (Dreger v New York State Thruway
Authority, 81 NY2d 721, 724 ).
Here, the negligence cause of action underlying Claim No. 106117 accrued on
August 7, 2001, when claimant allegedly slipped and fell in a bathroom at
Franklin, striking his head on the bathroom sink. Even assuming, arguendo,
that the original green return receipt cards annexed to claimant's
submissions prove that the defendant was served with a notice of intention on
December 12, 2001, at the earliest, and then possibly served again on January
14, 2002, both dates are beyond the 90 day period mandated by the Court of
Moreover, there is no proof that
the Attorney General's Office was ever served with a copy of Claim No. 106117.
At best, claimant's proof indicates that Claim No. 106117 was forwarded to the
Court by certified mail, return receipt requested, for filing in May of 2002.
Likewise, there is no proof that the claim served on the defendant in March of
2003 was ever filed with the Court. Because the jurisdictional imperatives of
the Court of Claims Act have not been met, this Court does not have the power to
hear either the unfiled claim sent to the Attorney General or Claim No. 106117,
which is hereby dismissed, sua sponte
. As a result of this ruling,
Motions No. M-68282 and M-68283 are denied as moot.
Albany, New York
HON. JUDITH A. HARD
Judge of the Court of
The following were read and considered by the Court:
1. Notice of motion to compel further and complete responses to
interrogatories (M-68282) and unsworn supporting "affirmation" of Russell
Gillette, pro se, with annexed Exhibits;
2. Notice of motion for summary judgment (M-68283) and supporting affidavit of
Russell Gillette, pro se, with annexed Exhibits;
3. This Court's order to show cause (M-68312);
4. Letter submission of Russell Gillette, pro se, with annexed
5. First Reply "Affirmation" of Russell Gillette, pro se, with annexed
6. Affirmation of Michael W. Friedman, Esq., AAG, with annexed Exhibits;
7. Second Reply "Affirmation" of Russell Gillette, pro se, with annexed
8. Letter to the Chief Clerk from Russell Gillette, pro se, received
January 2, 2003;
9. Letter of the Chief Clerk to Russell Gillette, dated February 10,
10. Letter to the Court from Russell Gillette, pro se , received March
11. Letter to the Clerk of the Court from Russell Gillette, pro se, dated
July 28, 2003;
12. Letter to the Court from Michael W. Friedman, Esq., AAG, dated April 12,
13. Filed papers: Claim No. 106117; Answer to unfiled claim; and claimant's
In claimant's submissions, he alleges that
defendant's answer was in response to Claim No. 106117 or that it was misleading
as it refers to "injuries" which only occurred as a result of the slip and fall
and does not mention meals or diet (claimant's first reply affidavit, p. 2,
unnumbered paragraphs; claimant's second reply affidavit, ¶¶ 8 and 9).
Claimant is obviously reacting to the boilerplate language in defendant's
affirmative defenses, i.e., "... injuries and/or damages alleged in the claim
..." It is clear to the Court, however, that the defendant was serving an answer
to claimant's unfiled claim because in the answer defendant denies knowledge or
information regarding paragraphs 1 through 5 of the claim and addresses no other
paragraphs. Claimant's unfiled claim contains exactly 5 numbered paragraphs,
while Claim No. 106117 contains numbered paragraphs 1 through 20 and lettered
paragraphs A through J.
In the motion papers for summary judgment,
claimant argues that his notice of intention was timely served because he was
not discharged from the hospital following his accident until September 10, 2001
and that this date, and not August 7, 2001 when the accident occurred, should be
used as the accrual date (see
claimant's notice of motion, pgs. 2 and 3).
In certain medical malpractice cases, the statute of limitations can be tolled
by invoking the continuous treatment doctrine (CPLR 214-a; McDermott v
, 56 NY2d 399 ). Claim number 106117, however, is simply not a
medical malpractice action and claimant is not entitled to a later accrual date
on the basis of this continuous treatment doctrine.