New York State Court of Claims

New York State Court of Claims

YOUMANS v. THE STATE OF NEW YORK, #2004-034-549, Claim No. 108494, Motion Nos. M-67806, M-67880, M-67945, M-68104


Synopsis


Defendant's motion to dismiss is granted. Claimant's motion for permission to file a late claim is denied

Case Information

UID:
2004-034-549
Claimant(s):
ANTHONY YOUMANS The caption has been amended sua sponte to reflect the only proper defendant.
Claimant short name:
YOUMANS
Footnote (claimant name) :

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

Third-party defendant(s):

Claim number(s):
108494
Motion number(s):
M-67806, M-67880, M-67945, M-68104
Cross-motion number(s):

Judge:
MICHAEL E. HUDSON
Claimant's attorney:
ANTHONY YOUMANS, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: THOMAS G. RAMSAY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
July 2, 2004
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

Four motions are now pending before the Court. Defendant has moved pursuant to CPLR 3211 (a) (2) and (8), and Court of Claims Act § 11 (a), to dismiss the Claim for failure to serve the Attorney General. Claimant has filed separate motions seeking poor person status and assignment of counsel, injunctive relief and permission to file a late claim. For reasons that follow, the Court will grant Defendant's application, and deny Claimant's three requests for relief.

The Court has reviewed the following papers in connection with these motions:

1. Claim, verified October 23, 2003, filed November 5, 2003;
2. Amended Claim, unverified, filed November 20, 2003;

3. Claimant's Notice of Motion (M-67806), undated, filed December 22, 2003, with attachments;

4. Affirmation of Thomas G. Ramsay, dated January 23, 2004, filed January 27, 2004;

5. Claimant's Notice of Motion (M-67880), dated December 29, 2003, filed January 7, 2004, with attachments;

6. Affirmation in Opposition to Claimant's Motion of Thomas G. Ramsay, dated January 23, 2004, filed January 27, 2004;

7. Affidavit of Anthony Youmans in support of motion, sworn to December 30, 2003, filed January 28, 2004;

8. Defendant's Notice of Motion (M-67945), dated January 22, 2004, filed January 26, 2004;

9. Affirmation of Thomas G. Ramsay, in support of motion, affirmed January 22, 2004, with attached exhibits;

10. Affidavit in Support of Application Pursuant to CPLR 1101 (f) of Anthony Youmans (M-68104),[1] verified February 10, 2004, filed February 20, 2004;

11. Affirmation of Thomas G. Ramsay, dated March 18, 2004, filed March 22, 2004;

12. "Notice of Motion" in reply to Motion Nos. M-67806, M-67880, M-67945 and M-68104 of Anthony Youmans, dated February 1, 2004, filed February 13, 2004.

Claimant filed his original Claim on November 5, 2003, asserting various causes of action. Thereafter, he filed an Amended Claim on November 20, 2003, alleging that on November 6, 2002, he was assaulted by officers at Attica Correctional Facility. He subsequently filed motions seeking an injunction (M-67806), permission to file and serve a late claim (M-67880), and poor person status and assignment of counsel (M-68104). Following receipt of a letter from the Clerk of the Court scheduling the motion for injunctive relief, Defendant filed a motion (M-67945) to dismiss for failure to serve the Claim upon the Attorney General.

Inasmuch as Defendant has contested service of both the Claim and the Amended Claim, and has supported its assertion with a sworn affidavit, it is Claimant's burden to present evidence establishing proper service (Boudreau v Ivanov, 154 AD2d 638, 639 [1989]). Service of a claim upon the Attorney General is mandated under Court of Claims Act § 11 (a) (i). The requirements of section 11 are jurisdictional in nature, since the State as sovereign may attach terms and conditions to its consent to be sued, and the lack of service upon the Attorney General is a failure of subject matter jurisdiction which cannot be waived (Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]; Lepkowski v State of New York, 1 NY3d 201 [2003]). Claimant has failed to demonstrate the service of either pleading, and the Court hereby grants dismissal of the Claim and Amended Claim.

The Court will deny Claimant's motion for leave to file a late claim on two grounds. The motion is procedurally defective due to Claimant's failure to attach a proposed claim to his motion, as required by Court of Claims Act § 10 (6) (see Davis v State of New York, 28 AD2d 609, 610 [1967][addressing former section 10 (5)]; see also Walach v State of New York, 91 Misc 2d 167, 169 [1977] affd 69 AD2d 1015 [1979]).

The Court will not consider the allegations within the original Claim in weighing the late claim application. "An amended complaint having been served, it superseded the original complaint and became the only complaint in the case." (Halmar Distrs., Inc. v Approved Mfg. Corp., 49 AD2d 841 [1975]). Because Claimant filed his Amended Claim, as of right, on November 20, 2003, utilizing the same claim number, "the action herein must proceed as though the original pleading had never been served." (Halmar, 49 AD2d at 841; see also Van Epps v Town of Verona, 305 AD2d 1035 [2003]). Moreover, even if the Court were to consider the Amended Claim, which has alleged assault, for the purpose of determining the nature of the cause of action and its date of accrual, the application would nonetheless fail. Court of Claims Act § 10 (6) allows for the discretionary grant of such relief "at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules." Thus, an application to file and serve a late claim may only be considered if the underlying cause of action is not time-barred (see Klopfle v New York State Thruway Auth., 177 AD2d 1059 [1991]; Matter of Welch v State of New York, 71 AD2d 494 [1979]). The statute of limitations against a citizen of the State for assault is one year from accrual (CPLR 215 [3]). Since Claimant's cause of action for assault accrued on November 6, 2002, and his motion for leave to file a late claim was filed more than one year thereafter, on January 7, 2004, the Court is now barred from considering such relief.

The Court will likewise deny Claimant's motion for injunctive relief, since it lacks jurisdiction to grant strictly equitable relief, and at most might be able to consider such remedies as an incident to an award of monetary damages (Psaty v Duryea, 306 NY 413, 416-417 [1954]; see also Ozanam Hall of Queens Nursing Home, Inc. v State of New York, 241 AD2d 670, 671 [1997]). Further, having granted dismissal of the Claim, there is no pending action to afford jurisdiction for such relief (see Town of West Seneca v Smith, 115 AD2d 1013 [1985]; Chalasani v Neuman, 91 AD2d 1030 [1983]).

Claimant's request for poor person status and assignment of counsel will also be denied. Such relief is neither statutorily nor constitutionally required (see Wills v City of Troy, 258 AD2d 849 [1999]; Wilson v State of New York, 101 Misc 2d 924, 926 [1979]), and consequently is rarely granted when there is no indication that a claimant is facing a "loss of liberty" or "grievous forfeiture" (Matter of Smiley, 36 NY2d 433, 437 [1975]). Moreover, Court of Claims Act § 27 prohibits the allowance of costs or disbursements to any party. Civil Rights Law §§ 79 (3) and 79-a (3) likewise prohibit the State from paying for expenses associated with inmate litigation (Shell v State of New York, 307 AD2d 761 [2003], lv denied 1 NY3d 505 [2003]).

Based upon the above, it is

ORDERED, that Defendant's motion to dismiss is granted, and the Claim is dismissed. Claimant's motion for permission to file and serve a late claim, injunctive relief, poor person status and assignment of counsel are all denied. The Chief Clerk of the Court is hereby directed to close the file.


July 2, 2004
Buffalo, New York

HON. MICHAEL E. HUDSON
Judge of the Court of Claims




[1]Claimant did not include a Notice of Motion document for filing with the Clerk of the Court.