New York State Court of Claims

New York State Court of Claims

PERADZE v. THE STATE OF NEW YORK, #2005-015-010, Claim No. 107088, Motion Nos. M-69272, CM-69385


State's motion to dismiss claim served by ordinary mail granted cross-motion for late claim relief denied for lack of merit.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant's attorney:
Brown & HutchinsonBy: Jennifer A. Tumminelli, Esquire, of counsel
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Paul F. Cagino, Esquire and Stephen J. Maher, Esquire Assistant Attorneys General
Third-party defendant's attorney:

Signature date:
February 16, 2005
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant's motion to dismiss the claim for lack of jurisdiction is granted. Claimant's cross-motion for late claim relief pursuant to Court of Claims Act § 10 (6) is denied. Although the cross-motion is not supported by a proposed claim, cross-movant's attorney did attach a copy of the previously filed claim to counsel's affirmation. That claim seeks unspecified damages for the alleged denial of medical attention for a period of 24 hours beginning on October 29, 2002 as well as an alleged assault and battery perpetrated upon the claimant by correction officers S. White and K. Beecher on October 30, 2002 at Great Meadow Correctional Facility. The claim further alleges dereliction of duty on the part of an unnamed "correctional sgt." in allowing the assault and battery to occur.

In support of its motion the defendant submitted the affirmation of Assistant Attorney General Paul F. Cagino dated October 19, 2004 in which he alleges that the claim and notice of intention to file a claim were served upon the Attorney General by regular mail. Exhibit A attached to the motion is a photocopy of the envelope used to serve the claim. The envelope bears a postage meter stamp dated December 13, 2002 and indicates postage paid in the amount of $1.06. The envelope contains no additional postage or indicia of service by certified mail, return receipt requested.

The Assistant Attorney General's allegations concerning service are not disputed by claimant. Instead claimant asserts in an unsworn letter to the Court dated October 22, 2004 that he was unable to serve the claim by certified mail/return receipt requested due to insufficient funds in his inmate account. He alleges further that the Department of Correctional Services (DOCS) refused to authorize an advance to cover the cost of the additional postage required for certified mail/return receipt. Claimant's assertion is repeated in his attorney's affirmation dated November 24, 2004 (see paras. 9-11) submitted on the cross-motion. Counsel further avers that the defendant had actual notice of the essential facts constituting the claim as evidenced by both its answer to the claim and the instant motion.

In Turley v State of New York, (279 AD2d 819, lv to appeal denied 96 NY2d 708) the Appellate Division, Third Department stated:
Ordinary mail is not one of the methods of service authorized by Court of Claims Act § 11 (a) and, '[g]enerally, the use of ordinary mail to serve the claim upon the Attorney-General is insufficient to acquire jurisdiction over the State' (Philippe v State of New York, 248 AD2d 827; see Hodge v State of New York, 213 AD2d 766). Although a defect in the manner of service is waived if the State fails to assert the defect in its answer or in a preanswer motion to dismiss (see, Court of Claims Act § 11[c]), here the State asserted the defect in its answer. Claimant's contention that the State received actual notice of the claim and, therefore, was not prejudiced by his use of ordinary mail is unavailing, for 'notice received by means other than those authorized by statute cannot serve to bring a defendant within the jurisdiction of the court (Feinstein v Bergner, 48 NY2d 234, 241).

In the instant matter the defendant raised the defense of service by regular mail as to both the notice of intention and the claim in paragraphs seven and eight, respectively, of its answer. Since Turley is directly applicable under the facts of this case the claim must be and hereby is dismissed.

As noted above, the cross-motion for late claim relief is not supported by a proposed claim. While other judges of this Court have observed that a movant's failure to submit a proposed claim on a late claim application as mandated by Court of Claims § 10 (6) and § 11 supports the denial of the application (see Grant v State of New York, Ct Cl, September 6, 2000 [Claim No. None, Motion No. M-61919, UID # 2000-001-049] Read, P.J., unreported[1]; Larocco v State of New York, Ct Cl, May 24, 2004 [Claim No. None, Motion No. M-68085, UID # 2004-009-33] Midey, J., unreported) this Court has taken a different approach where the supporting papers include a previously filed claim. The Court will, therefore proceed to examine the statutory factors prescribed for late claim relief using the previously filed claim as the proposed claim.

Subdivision 6 of section 10 of the Court of Claims Act permits this Court, if the applicable Statute of Limitations set forth in article 2 of the CPLR has not expired, to allow the filing of a late claim upon consideration of the following factors: "whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy".

The first issue for determination upon a late claim motion is whether the application is timely. Since part of the proposed claim sounds in negligent supervision the three-year statute of limitations set forth in CPLR § 214 (5) applies and that portion of the instant motion filed within twenty-five months of the incident complained of is timely. The motion is also timely as to a cause of action sounding in medical malpractice which must be commenced within 2 ½ years of accrual pursuant to CPLR 214-a. The application is, however, untimely insofar as movant seeks to assert a cause of action for assault and battery which must be commenced within one year of accrual pursuant to CPLR 215. Consideration of the late claim application is therefore limited to causes of action sounding in negligent supervision and medical malpractice.

Turning to the statutory factors, this Court has broad discretion in deciding a motion to permit the late filing of a claim (Ledet v State of New York, 207 AD2d 965). The statutory factors are not exhaustive nor is one factor controlling (Matter of Gavigan v State of New York, 176 AD2d 1117). The most important factor is whether the potential claim has merit, as it would be a futile exercise to permit litigation of a clearly baseless lawsuit (Savino v State of New York, 199 AD2d 254).

As to the delay in filing the claim, claimant asserts that he was unable to pay for certified mail/return receipt requested since he had insufficient funds in his inmate account and the facility refused to authorize an advance. This excuse has in the past been found to be reasonable (Hop Wah v State of New York, 137 Misc 2d 751) and this factor weighs in favor of granting the motion.

The intertwined issues of notice, opportunity to investigate and prejudice will be considered together. This incident gave rise to both a misbehavior report and use of force report. Under the circumstances it appears that the defendant received timely notice of the incident and was thereby afforded an opportunity to investigate the circumstances underlying the proposed claim. These factors favor the claimant.

Regarding the issue of merit it is claimant's burden to show that the proposed claim is not patently groundless, frivolous or legally defective and there is reasonable cause to believe that a valid claim exists (see Rosenhack v State of New York, 112 Misc 2d 967; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1).

As to the proposed cause of action for negligent supervision of correction officers White and Beecher claimant alleged in the previously filed claim that "no sgt was notify [sic] of my incident." The claim makes no other reference to supervisory personnel or any alleged negligence on the part of such personnel and, as a result, the Court finds that this aspect of the claim lacks merit. The filed claim further alleges that claimant was denied requested medical care for over 24 hours. But this allegation is belied by other allegations set forth in the filed claim. Specifically claimant alleges that upon arriving at the facility hospital on October 29, 2002 he "was seen by medical staff. She check my blood pressure and stated nothing was wrong with me, I cannot recall her name. Momentarily another medical staff came to see me, this time it was a male staff his name I cannot recall due to the pain I am in at the current time, he then escorted me to the second floor, and I was place [sic] in hospital holding cell. loc. I so room #4. I've stayed in the room for over twenty-four hrs and no medical staff came to my aid."

It appears from his own allegations that claimant was not denied prompt medical attention but rather was dissatisfied with the type and extent of medical care provided. The claim does not allege that claimant sustained any injury as a result of the medical attention he received or by being deprived of additional medical attention.

Because this portion of the claim involves questions regarding standards of care and the professional judgments of two members of the facility medical staff relative to diagnosis and treatment the application for late claim relief must be supported by expert medical opinion (Perez v State of New York, 293 AD2d 918; Favicchio v State of New York, 144 Misc 2d 212; Daniels v State of New York, Ct Cl, August 11, 2004 [Claim No. None, Motion Nos. M-68594, M-67929, UID #2004-031-102] Minarik, J. unreported and cases cited therein). No physician's affidavit was submitted on the instant motion and the conclusory allegations set forth in claimant's attorney's affirmation are clearly insufficient to establish merit. This important factor weighs against granting the motion.

As to the final factor, it does not appear that any other legal remedy is available to claimant under the circumstances.

Upon consideration of all of the statutory factors the claimant's motion for late claim relief pursuant to Court of Claims Act § 10 (6) is denied.

February 16, 2005
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated October 19, 2004;
  2. Affirmation of Paul F. Cagino dated October 19, 2004 with exhibit;
  3. Notice of cross-motion dated November 24, 2004;
  4. Affirmation of Jennifer A. Tumminelli dated November 24, 2004 with exhibits;
  5. Affirmation of Stephen J. Maher dated November 29, 2004.

[1]Unreported decisions from the Court of Claims are available via the internet at