New York State Court of Claims

New York State Court of Claims

GILLETTE v. THE STATE OF NEW YORK, #2004-032-079, Claim No. 106117, Motion Nos. M-68282, M-68283, M-68312


Synopsis


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.


Case Information

UID:
2004-032-079
Claimant(s):
RUSSELL GILLETTE The Court sua sponte amends the caption to reflect the only proper defendant.
Claimant short name:
GILLETTE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court sua sponte amends the caption to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106117
Motion number(s):
M-68282, M-68283, M-68312
Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant's attorney:
Russell Gillette, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Michael W. Friedman, Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
September 28, 2004
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

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. 106117.

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 following:
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 papers.

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 office."

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 earlier,[1] 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 [1981]). 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 [1992]).

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 Claims Act.[2] 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.


September 28, 2004
Albany, New York

HON. JUDITH A. HARD
Judge of the Court of Claims


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 Exhibits;

5. First Reply "Affirmation" of Russell Gillette, pro se, with annexed Exhibits;

6. Affirmation of Michael W. Friedman, Esq., AAG, with annexed Exhibits;

7. Second Reply "Affirmation" of Russell Gillette, pro se, with annexed Exhibits;

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, 2003;

10. Letter to the Court from Russell Gillette, pro se , received March 4, 2003;

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, 2004;

13. Filed papers: Claim No. 106117; Answer to unfiled claim; and claimant's interrogatories.


[1] 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.
[2] 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 Torre, 56 NY2d 399 [1982]). 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.