New York State Court of Claims

New York State Court of Claims

LIVESEY v. THE STATE OF NEW YORK, #2005-009-048, Claim No. 108738, Motion No. M-70176


Synopsis


Defendant's motion to dismiss the claim for improper and untimely service was granted.

Case Information

UID:
2005-009-048
Claimant(s):
LISA LIVESEY
Claimant short name:
LIVESEY
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108738
Motion number(s):
M-70176
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant's attorney:
MICHAEL W. SMRTIC, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Joel L. Marmelstein, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
September 28, 2005
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant has brought this motion seeking an order dismissing the claim based upon improper and untimely service of the claim.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation in Support, with Exhibits 1,2


Affirmation in Response, with Exhibits 3

Sur-Reply Affirmation, with Exhibits (Defendant) 4


Sur-Reply Affirmation, with Exhibits (Claimant) 5

In her filed claim, claimant alleges causes of action for false arrest and malicious prosecution, based upon an arrest which occurred "on or about October 2, 2003".

As established by the papers submitted by both parties on this motion, the claim was personally served upon the Attorney General on January 7, 2004, and was filed with the Clerk of the Court of Claims on the same date. This claim, however, was unverified, and by letter dated the same day, the Attorney General notified claimant's attorney that the State had elected to treat the claim as a nullity (see Exhibit E to Item 4)[1].

In response, claimant then served an identical claim, properly verified, upon the Attorney General by United States Postal Service Express Mail. This claim was received by the Attorney General on January 12, 2004 (see Exhibit C to Items 1, 2).

Since it had elected to treat the claim served on January 7, 2004 as a nullity, the defendant now moves to dismiss the claim which it received on January 12, 2004 contending that service was untimely and improper.

In opposition to this motion, claimant states that the actual date of arrest occurred on October 7, 2003, rather than October 2, 2003, and that claimant was confined for 17 hours until 5:30 p.m. on October 8, 2003. Such information is set forth in claimant's Verified Bill of Particulars, dated February 18, 2004.

Pursuant to Court of Claims Act § 10(3) (which governs unintentional torts) and § 10(3-b) (which governs intentional torts), a claim must be served upon the Attorney General and filed with the Clerk of the Court of Claims within 90 days from the date of accrual, unless within such time period a written notice of intention to file a claim is served upon the Attorney General. If a written notice of intention is so served, a claimant must then file and serve a claim within two years after accrual for unintentional torts (§ 10[3]), or within one year after accrual for intentional torts (§ 10[3-b]). Furthermore, pursuant to Court of Claims Act § 11(a), a claim must be served upon the Attorney General either personally or by certified mail, return receipt requested (Hodge v State of New York, 213 AD2d 766).

In this matter, there is no indication whatsoever that a notice of intention to file a claim was served upon the Attorney General. The issue before the Court, therefore, is whether claimant has timely and properly served her claim within the jurisdictional time limitations set forth above.

Regardless of whether the Court considers the accrual date in this claim to be October 2, 2003 (as set forth in the claim) or, as argued by claimant, October 7, 2003 (as set forth in the Verified Bill of Particulars)[2], initial service of the unverified claim on January 7, 2004 was not timely, since it was not made within 90 days of accrual. For it to be timely within the strict mandates of § 10, service of a claim which accrued on October 2, 2003 had to be effected by December 31, 2003. A claim which accrued on October 7, 2003 had to be served by January 5, 2004, and similarly, a claim which accrued on October 8, 2003 had to be served by January 6, 2004. As a result, without even considering the legal significance caused by service of an unverified claim, service of the claim on January 7, 2004 was untimely.[3]

The provisions of §§ 10 and 11 of the Court of Claims Act relating to the time and manner of service are jurisdictional prerequisites to the institution and the maintenance of a claim, and as such must be strictly construed (Greenspan Bros. v State of New York, 122 AD2d 249; Phillips v State of New York, 237 AD2d 590). This Court, therefore, does not have the discretion to overlook defects in the time and/or manner of service of a claim. Since the service by claimant on either occasion was not timely made, the claim is jurisdictionally defective and must be dismissed.

Pursuant to Court of Claims Act § 11(c), any objection or defense based upon a failure to comply with the service requirements set forth in § 11(a) is waived unless the objection or defense is raised, with particularity, either in a motion to dismiss made prior to the service of the responsive pleading, or in the responsive pleading itself. In this particular matter, the Court has examined the answer served by the defendant (see Exhibit B to Items 1, 2) and finds that an objection as to timely service of the claim was raised by the defendant, with particularity, as its second affirmative defense, in compliance with § 11(c). As a result, defendant has not waived any objection as to untimely service.

Finally, in his Sur-Reply Affirmation (see Item 5), claimant's attorney has argued that the Court, in its discretion, should allow this claim, since the State had sufficient notice of the claim through service of the unverified claim, and therefore would not be prejudiced in the defense of this claim. As noted above, however, this Court does not have the discretion to overlook defects in the time and/or manner of service, and factors such as notice and lack of prejudice are pertinent only in a late claim application brought by motion pursuant to Court of Claims Act § 10(6), an application which is not before the Court at this time.[4]

Based on the foregoing, therefore, it is

ORDERED, that Motion No. M-70176 is hereby GRANTED; and it is further

ORDERED, that Claim No. 108738 is hereby DISMISSED.


September 28, 2005
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims




[1]Although not determinative of any issue raised in this motion, the Court notes that the State Legislature has addressed the issues raised by the service of an unverified claim with the passage of Chapter 460 of the Laws of 2005, effective August 9, 2005.
[2] The same reasoning applies even if October 8, 2003 (the date of claimant's release from custody) is considered as the accrual date.
[3] Obviously, if service of the initial claim was untimely, the subsequent service of a properly verified claim on January 12, 2004 was also untimely, without even considering whether the manner of service utilized by claimant was proper.
[4] In his Sur-Reply Affirmation, claimant's attorney also made note that the malicious prosecution cause of action asserted by claimant continued well beyond the accrual dates contained in the claim and/or Bill of Particulars. Since a jurisdictional defect in a claim may not be cured by amendment of the claim (see Grande v State of New York, 160 Misc 2d 383; Ferrer v State of New York, 172 Misc 2d 1), mere assertions contained within opposition papers to a motion are clearly insufficient to cure such a defect, and this argument is found to have no merit.