New York State Court of Claims

New York State Court of Claims

GARRAND v. THE STATE OF NEW YORK, #2006-015-098, Claim No. 109663, Motion No. M-71354


Synopsis


Claim served by ordinary mail dismissed for lack of jurisdiction. Claimant's request to treat notice of intention as a claim contained solely in his opposition papers and without a notice of motion is denied.

Case Information

UID:
2006-015-098
Claimant(s):
ANN GARRAND, as Administratrix of the Estate of ANDREW DILORENZO, deceased
Claimant short name:
GARRAND
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109663
Motion number(s):
M-71354
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Grasso, Rodriguez & GrassoBy: Joseph J. Villano, Esquire
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Glenn C. King, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 30, 2006
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant's motion to dismiss the claim for lack of jurisdiction pursuant to CPLR 3211 (a) (2) is granted. Claimant's request to treat the notice of intention as a claim set forth in claimant's attorney's affirmation in opposition is denied. Claimant administratrix alleges that the decedent died of a cardiac tamponade due to perforation of the heart caused by a self-inflicted stab wound to the left chest. She further alleges that decedent's suicide was the result of improper diagnosis and treatment of the decedent by agents, servants and employees of the Capital District Psychiatric Center (CDPC).

Defendant moved to dismiss the claim on the ground that the Court lacks jurisdiction due to service of the claim by ordinary mail. Defense counsel further argues that the claim is untimely with regard to that portion which seeks to assert a survival action in that neither a notice of intention nor a claim was filed within 90 days of the claim's accrual date (September 23, 2002) as required by Court of Claims Act § 10 (3). Claimant opposed the motion.

Defense counsel alleges in his affirmation in support of the motion that claimant served a notice of intention to file a claim upon the Attorney General which was received on March 23, 2004. He did not allege by what manner the notice of intention was served nor attach a photocopy of the envelope in which the notice of intention was served. However, counsel did attach a copy of a cover letter from claimant's attorneys dated March 22, 2004 which contains the words "Certified Mail Return Receipt," (see defendant's Exhibit A).

Defense counsel further alleges that the claim itself was served by ordinary mail rather than personally served or served by certified mail, return receipt requested as required by Court of Claims Act § 11 (a). This defense was set forth with the required particularity in the answer. A photocopy of the envelope in which the claim (improperly titled notice of claim) was served upon the Attorney General was submitted as Exhibit B. The envelope bears postage of only $0.74 and contains no indicia of certified mail, return receipt requested. This submission satisfactorily demonstrates the instant claim was served by ordinary mail.

Defense counsel also avers that the survival action portion of the instant claim is untimely in that neither the notice of intention nor the claim were filed[1] within 90 days of the claim's accrual on September 23, 2002 (see Fifth Defense, defendant's Exhibit C).

In his opposing affirmation claimant's attorney does not dispute that the claim was served by ordinary mail. In fact he concedes the point in paragraph 8 of his affirmation and attaches thereto as Exhibit 6 an affidavit of service demonstrating service of the claim by regular mail.

The law regarding the manner of service of a claim is well settled. "Ordinary mail is not one of the methods of service authorized by Court of Claims Act § 11 (a)" (Turley v State of New York, 279 AD2d 819) and "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). Defendant having established that service of the claim was not accomplished in accordance with the requirements of Court of Claims Act § 11 (a), the Court lacks jurisdiction and the claim must be dismissed (Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687).

As noted above, claimant's attorney requested in his opposing affirmation that the verified notice of intention served upon the Attorney General on March 23, 2004 be treated as a claim pursuant to Court of Claims Act § 10 (8). Subdivision (a) of paragraph 8 of section 10 specifically provides:
A claimant who timely serves a notice of intention but who fails to timely serve or file a claim may, nevertheless, apply to the court for permission to treat the notice of intention as a claim. The court shall not grant such application unless: it is made upon motion 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; the notice of intention was timely served, and contains facts sufficient to constitute a claim; and the granting of the application would not prejudice the defendant.

Claimant's request to treat the notice of intention as a claim must be denied since it was not made "upon motion" as mandated by the clear and unambiguous language of the Act (see L. 2001 c 205 § 2; Doe v State of New York, Ct Cl, September 4, 2001 [Claim No. 100768, Motion No. M-63616, UID # 2001-009-037] Midey, J., unreported[2]; Pratt v State of New York, Ct Cl, January 18, 2006 [Claim No. 109676, Motion No. M-70872, UID # 2006-015-061] Collins, J., unreported). Claimant's request for relief pursuant to Court of Claims Act § 10 (8) is therefore denied.

Dismissal of the claim for lack of jurisdiction and the denial of relief pursuant to Court of Claims Act § 10 (8) (a) render academic defendant's remaining argument that the claim should be dismissed as untimely.


June 30, 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 February 24, 2006;
  2. Affirmation of Glenn C. King, dated February 24, 2006, with exhibits;
  3. Affirmation of Joseph J. Villano dated March 28, 2006 with exhibits.

[1].Although defense counsel used the word "filed" in paragraphs 6 and 7 of his affirmation when addressing the issue of timeliness relative to the notice of intention it is obvious that the intended use of the word "served" since filing of a notice of intention in this Court was eliminated pursuant to Chapter 466 of the Laws of 1995 effective August 2, 1995.
[2].Unreported decisions from the Court of Claims are available via the internet at http://www.nyscourtofclaims.state.ny.us./decision.htm.