New York State Court of Claims

New York State Court of Claims

JENKINS v. THE STATE OF NEW YORK, #2005-030-525, Claim No. 110447, Motion No. M-69829


Synopsis



Case Information

UID:
2005-030-525
Claimant(s):
SYLVIA JENKINS The caption has been amended to reflect the only proper defendant.
Claimant short name:
JENKINS
Footnote (claimant name) :

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

Third-party defendant(s):

Claim number(s):
110447
Motion number(s):
M-69829
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
SYLVIA JENKINS, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: JEANE L. STRICKLAND SMITH, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
May 2, 2005
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1 to 3 were read and considered on Defendant's pre-answer motion to dismiss the within claim:
1,2 Notice of Motion; Affirmation in Support of Motion to Dismiss by Jeane L. Strickland Smith, Assistant Attorney General and attached exhibits

  1. Filed Papers: Claim
No Opposition

After carefully considering the papers submitted and the applicable law the motion is disposed of as follows:

Sylvia Jenkins appears to allege in Claim Number 110447 that Defendant's agents wrongfully held mail directed to her, slandered her, subjected her to cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution, and failed to provide her with adequate medical treatment while she was in the custody of the New York State Department of Correctional Services (hereafter DOCS) at various correctional facilities. The date of accrual alleged is August 18, 2004, with some indication that there are "additional events that . . . [have] occurred . . . " [Claim No. 110447, ¶ 4]. A Notice of Intention was served by regular mail, and filed stamped as "received" by the Office of the Attorney General on September 22, 2004. [Affirmation in Support of Motion to Dismiss,¶ 5, Exhibit 1]. The Claim itself was also served by regular mail, file stamped "received" by the Office of the Attorney General on February 2, 2005, and filed in the Office of the Chief Clerk of the Court of Claims on February 2, 2005. [ibid. ¶ 6, Exhibit 2].

The filing and service requirements contained in Court of Claims Act §§10 and 11 are jurisdictional in nature and must be strictly construed. Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 (1989). Indeed, the statute provides in pertinent part ". . . [n]o judgment shall be granted in favor of any claimant unless such claimant shall have complied with the provisions of this section applicable to his claim . . . " Court of Claims Act §10.

Service upon the Attorney General by ordinary mail is generally insufficient to acquire jurisdiction over the State, unless the State has failed to properly plead jurisdictional defenses or raise them by motion. Court of Claims Act §11(c).

Additionally, the Claimant has the burden of establishing proper service, [Boudreau v Ivanov, 154 AD2d 638, 639 (2d Dept 1989)], by a preponderance of the evidence. See Maldonado v County of Suffolk, 229 AD2d 376 (2d Dept 1996). Regulations require that proof of service be filed with the Chief Clerk within ten (10) days of service on the defendant. 22 NYCRR § 206.5(a).

A claim alleging a negligence cause of action or an intentional tort, must be served and filed within ninety (90) days of its accrual, while inmate personal property loss claims must be served and filed within one hundred twenty (120) days after the inmate has exhausted the personal property claims administrative remedy. Court of Claims Act §§10(3), 10(3-b) and 10(9). With respect to negligence and intentional tort causes of action, if a claimant serves a Notice of Intention to file a Claim within ninety (90) days of accrual, then the time period within which to serve and file a claim is extended to two (2) years of accrual on any negligence cause of action, and one (1) year of accrual with respect to any intentional tort cause of action.

The purpose of the Notice of Intention[1] is to put the Defendant State on notice of potential suit against it, so that it may investigate the claim and infer a theory of liability. It also acts to extend the period within which a Claim must be served and filed, provided it has been properly served and contains the required information. While it need not be scrutinized with the same attention as a pleading, it should nonetheless perform its notice function, as well as provide specific enough information to determine whether any subsequently served and filed Claim is timely filed.

In this case, a broad period of time for various alleged wrongs is set forth, some of which are beyond the subject matter jurisdiction of this Court. The Notice of Intention mentions an August 18, 2004 date of accrual related to the State's alleged failure to give Claimant her mail, and then refers to slander, without specifying when such slander took place. There is no mention of medical negligence or medical malpractice.

As an initial matter, the Notice of Intention was not served certified mail, return receipt requested as required [See Court of Claims Act §11 (a)(i)], and thus cannot operate to toll the statute of limitations. Calco v State of New York, 165 AD2d 117 (3d Dept 1991). Thus assuming a date of accrual of August 18, 2004, the claim was not timely served and filed and is dismissed on that ground alone.

Additionally, the claim was not served in accordance with the jurisdictional requirements of Court of Claims Act §11, in that it was not served personally or by certified mail, return receipt requested. Claimant has not established that she served the Claim upon the Attorney General as required, and the Defendant has raised the jurisdictional issue in a timely motion. Thus Claimant has failed to establish, by a fair preponderance of the credible evidence, that the Attorney General was served with a copy of the claim as required by Court of Claims Act §11(a).

Moreover, the claim fails to state a cause action in that it does not contain the essential statutory and regulatory elements required by Court of Claims Act §11 (b) and 22 NYCRR §206.6. The only date of accrual alleged is August 18, 2004, and it appears to refer only to the personal property loss alleged. What is alleged to have been lost and its value is not stated anywhere.

With regard to any cause of action for slander, the specific words are not set forth [See Civil Practice Law and Rules §3016], nor does the claim identify the state employees involved or where any incidents took place.

A claim alleging violation of the Eighth Amendment prohibition against cruel and unusual punishment is based upon a violation of the Federal Constitution, and should be pursued pursuant to 42 USC §1983. No cause of action against the State of New York exists for alleged violations of an individual's rights under the United States Constitution [See Welch v State of New York, 286 AD2d 496, 498 (2d Dept 2001); Zagarella v State of New York, 149 AD2d 503 (2d Dept 1989; Davis v State of New York, 124 AD2d 420, 423 (3d Dept 1986)], in that the State is not a "person" amenable to suit pursuant to 42 USC §1983.

Finally, claimant states that she reported pains in her right knee and a lump near her neck and chest, and that her complaints were ignored - seemingly - but it is unclear what the allegations of negligence are, and, although there are April 2004 and December 2004 dates mentioned, from a plain reading of the claim it is unclear when the alleged negligence occurred, or what acts or omissions constituted such negligence.

Accordingly, Claim Number 110447 is hereby dismissed in its entirety, for both a lack of subject matter and personal jurisdiction.

May 2, 2005
White Plains, New York
HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1] Court of Claims Act §11(b) states what should be set forth in a Notice of Intention and a Claim. The statute provides in pertinent part: "The claim shall state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and the total sum claimed . . . The notice of intention to file a claim shall set forth the same matters except that the items of damage or injuries and the sum claimed need not be stated." See also 22 NYCRR §206.6. At a minimum, when the claim arose and what it is about should be set forth in the Notice of Intention.