New York State Court of Claims

New York State Court of Claims

FULTON v. THE STATE OF NEW YORK, #2006-015-070, Claim No. 111012, Motion No. M-70894


Synopsis


Court denied claimant's motion to vacate prior dismissal of claim and request to treat notice of intention as a claim pursuant to Court of Claims Act § 10 (8). Here claimant had served an unverified notice of intention by certified mail, return receipt requested which the Attorney General rejected in timely fashion then served a verified notice of intention by ordinary mail. Neither of such services was effective to acquire jurisdiction over the defendant.

Case Information

UID:
2006-015-070
Claimant(s):
ALVIN FULTON, JR.
Claimant short name:
FULTON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111012
Motion number(s):
M-70894
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Alvin Fulton, Jr., Pro Se
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Kathleen M. Arnold, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 3, 2006
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:
AFFIRMED 35 AD3D 977 3D DEPT 2006
See also (multicaptioned case)



Decision

Claimant moves for an order vacating a prior decision and order of the Court dated October 14, 2005 which granted defendant's motion to dismiss claim number 111012 on the basis that the claim was served by ordinary mail (M-70488). Alternatively, claimant seeks relief pursuant to Court of Claims Act § 10 (8) which permits a notice of intention to be treated as a claim under appropriate circumstances. The defendant opposed the motion. The motion is denied. Whether claimant seeks to vacate the prior order of dismissal pursuant to CPLR 5015 or to renew or reargue the prior motion pursuant to CPLR 2221 it is clear that the affidavit submitted in support of the motion is inadequate to justify the relief requested under either statute. That part of claimant's motion addressed to the Court's prior decision and order dated October 14, 2005 is, therefore, denied.

With regard to the alternative request to treat the notice of intention as a claim pursuant to Court of Claims Act § 10 (8), the claimant has not denied either the statements contained in defense counsel's affirmation in opposition to the motion or the validity of the exhibits annexed thereto. Specifically, Assistant Attorney General Arnold alleges, inter alia, that claimant served an unverified notice of intention upon the Attorney General's Office by certified mail, return receipt requested on April 18, 2005. She further alleges that upon its receipt the Attorney General rejected the unverified notice of intention and returned it to the claimant under cover letter dated April 18, 2005 (defendant's Exhibit 1). That letter advised claimant that the notice of intention was being treated as a nullity pursuant to CPLR Rule 3022 because it was unverified. In doing so the defendant acted in compliance with the Court of Appeals' direction in Lepkowski v State of New York (1 NY3d 201, 210) thereby preserving the verification objection or defense which was addressed and argued by defense counsel on the prior pre-answer motion to dismiss (see Court of Claims Act § 11 [c]).

Claimant served a second notice of intention upon the Attorney General on April 29, 2005. Although the notice of intention was verified it was served upon the Attorney General by ordinary mail.

Court of Claims Act § 11 (b) provides "[t]he claim and notice of intention to file a claim shall be verified in the same manner as a complaint in an action in the supreme court". The unrefuted proof on the motion establishes that the first notice of intention served on April 18, 2005 was unverified. The defendant provided claimant timely notice of its election to treat the notice as a nullity and later argued the issue in its pre-answer motion to dismiss. An unverified notice of intention cannot, under these circumstances, serve as a proper basis for a motion to treat a notice of intention as a claim pursuant to Court of Claims Act § 10 (8).

The second notice of intention was served by regular mail on April 29, 2005. Court of Claims Act § 11 (a) (i) requires that a notice of intention be served upon the Attorney General either personally or by certified mail, return receipt requested. Since the second notice of intention was served by regular mail it is also unavailable as a vehicle to secure relief under Court of Claims Act § 10 (8).

Although a literal reading of section 10 (8) of the Court of Claims Act might appear to suggest that relief is conditioned only upon timely service of a notice of intention such an interpretation of the statute ignores the requirements of Court of Claims Act § 11 relative to service and verification of a notice of intention to file a claim. It is well established that " [b]ecause suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed" (Lichtenstein v State of New York, 93 NY2d 911, 913, quoting Dreger v New York State Thruway Auth., 81 NY2d 721).

In Lepkowski, supra, the Court of Appeals stated the following at page 206:
The State's waiver of immunity from suits for money damages is not absolute, but rather is contingent upon a claimant's compliance with specific conditions placed on the waiver by the Legislature (see Court of Claims Act § 8 [specifying that the State waives its immunity from liability and action 'provided the claimant complies with the limitations' of article II of the Court of Claims Act, which includes section 11].

As a matter of statutory construction "[a]ll parts of a statute must be harmonized with each other as well as with the general intent of the whole statute, and effect and meaning must, if possible, be given to the entire statute and every part and word thereof" (McKinney's Cons Laws of NY, Book 1, Statutes § 98). The need for harmony among the various parts of a statute is heightened when the analysis involves a statutory scheme such as the Court of Claims Act and, in particular, Article II of the Act which includes § § 8, 10 and 11 (see Alston v State of New York, 97 NY2d 159).

In light of the foregoing, the claimant's motion to treat the unverified notice of intention served upon the Attorney General on April 18, 2005 or the verified notice of intention served by regular mail on April 29, 2005 as a claim must be denied.

Claimant's motion is in all respects denied.


March 3, 2006
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated October 27, 2005;
  1. Affidavit of Alvin Fulton, Jr. sworn to October 27, 2005 with exhibits;
  2. Affirmation of Kathleen M. Arnold dated November 30, 2005 with exhibits;
  3. Reply response of Alvin Fulton, Jr. sworn to December 2, 2005.


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