New York State Court of Claims

New York State Court of Claims

PITTMAN v. STATE OF NEW YORK, #2006-018-526, Claim No. 111651, Motion Nos. M-70945, M-71073


Synopsis


Motion to file late claim denied. Pre-answer motion to dismiss claim granted pursuant to Court of Claims Act § 11(a).

Case Information

UID:
2006-018-526
Claimant(s):
HENRY E. PITTMAN
1 1.The Court has amended the caption sua sponte to reflect the State of New York as the only proper defendant.
Claimant short name:
PITTMAN
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :
The Court has amended the caption sua sponte to reflect the State of New York as the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111651
Motion number(s):
M-70945, M-71073
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant’s attorney:
HENRY E. PITTMANPro Se
Defendant’s attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQUIREAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 7, 2006
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant has brought a motion for permission to file a late claim filed November 7, 2005,

which Defendant opposes (Motion No. M-70945). Defendant, on December 16, 2005, filed a pre-answer motion to dismiss a claim filed on November 21, 2005 (Motion No. M-71073). Claimant has not opposed this motion.
Motion for Permission to Late File
Court of Claims Act § 10(6) permits a potential Claimant who has failed to timely file and serve a claim to apply to the Court for permission to file a late claim at any time before a like claim against a citizen of the State would be barred by the statute of limitations. The statute,

§ 10(6), directs that a proposed claim containing all of the information required by § 11 of the Court of Claims Act must be filed with the application. Here, Claimant has failed to file a proposed claim along with his application. Claimant has attached a completed “Notice of Intention to File a Claim” form, however, it fails to contain all of the information required in a claim (Court of Claims Act § 11[b]). The failure to file a proposed claim alone requires denial of the application (see Davis v State of New York, 28 AD2d 609; DiBacco v State of New York, 57 Misc 2d 832).

Even if the Court treated this “Notice of Intention to File a Claim” as a proposed claim, the application would be denied. The Court, in determining whether an application for permission to file a late claim should be granted, considers the six factors listed in Court of Claims Act § 10(6), and any other relevant factors. The presence or absence of any one factor is not determinative (Bay Terrace Cooperative Section IV, Inc. v New York State Employees’ Retirement System Policemen’s and Firemen’s Retirement System, 55 NY2d 979; Ledet v State of New York, 207 AD2d 965). Instead, it is a balancing of all of the factors by the Court which in this case weigh against granting Claimant’s application.

The first factor is whether the delay in filing the claim is excusable. Claimant seems to allege that he was in the Special Housing Unit which made it difficult for him to “exhaust remedies.” He also asserts that the lawyer librarian, presumably at the correctional facility, was intentionally uncooperative. These are not valid excuses (see Sandlin v State of New York, 294 AD2d 723; Matter of Sevilla v State of New York, 145 AD2d 865, lv denied 74 NY2d 601). As a result this factor weighs against granting Claimant’s application.

The factors of whether the State had notice of the essential facts, an opportunity to investigate the underlying claim, and whether the State will suffer substantial prejudice if the late filing and serving of the claim are permitted are addressed together. There is no indication from Claimant’s submissions when or how the State would have had notice or an opportunity to investigate this potential claim. These factors weigh against granting Claimant’s application.

The next factor, whether the claim appears to be meritorious, is often referred to as the most essential factor. Generally a proposed claim meets this standard if it is not patently groundless, frivolous, or legally defective, and upon consideration of the entire record, there is cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1,11). In the “Notice of Intention To File A Claim” Claimant alleges that the mailroom clerk indifferently neglected to protect and serve him; Captain L. Kanaly showed prejudicial judgment at a hearing by denying Claimant the right to present witnesses; and Superintendent “Ekpe” showed “indifference of intentions” by agreeing with the decision rendered. In the document dated October 24, 2005, submitted by Claimant in support of the motion and entitled “Motion For Permission to File a Late Claim,” he makes allegations of negligence and intentional infliction of emotional and psychological distress and unfair imprisonment for 65 days of “solitude [sic] confinement, loss of production and advancement in program participation.” Claimant, in this document, also alleges that the superintendent failed to remedy the wrong, created a policy or custom in violation of Claimant’s constitutional rights and failed to manage subordinates in violation of Claimant’s rights. These vague, incongruous assertions do not establish a potentially meritorious cause of action. To the extent that Claimant takes exception to the conduct of State officials at a disciplinary hearing or their imposition of punishment after a hearing these discretionary decisions, are quasi-judicial in nature. Since there is no allegation that those decisions were made in violation of established rules and regulations, they are subject to absolute immunity and cannot form the basis for a meritorious cause of action (Arteaga v State of New York, 72 NY2d 212; Holloway v State of New York, 285 AD2d 765, 766). This factor also weighs against granting Claimant’s application.

The final factor is whether the proposed Claimant has any other remedy available. It does not appear that Movant would have any other remedy since his allegations arise within the context of his confinement as an inmate at a State correctional facility and involve State employees engaged in their employment.

Accordingly, based upon the foregoing, Movant’s application is denied.
Motion to Dismiss
Defendant brings a pre-answer motion to dismiss a claim filed by Claimant on November 21, 2005. Defendant asserts that the Court lacks personal and subject matter jurisdiction for several reasons: Because the claim was served by regular mail instead of by certified mail, return receipt requested, the claim was not verified and fails to set forth an accrual date in accordance with Court of Claims Act § 11(b), and the claim fails to set forth a cognizable cause of action. Claimant has not disputed Defendant’s position.

Based upon the circumstances of this case, the Court will grant Defendant’s motion for failing to properly serve the Attorney General in accordance with Court of Claims Act § 11(a).

The failure to serve the Attorney General by certified mail, return receipt requested or personal service as required by Court of Claims Act § 11(a) is a jurisdictional defect (see Bogel v State of New York, 175 AD2d 493, 494, “[s]ervice of claims upon the Attorney-General by ordinary mail was insufficient to acquire jurisdiction over the State” and the claim was therefore properly dismissed; Diaz v State of New York, 174 Misc 2d 63, 64, “[s]ervice by regular mail does not comply with the requirements of the statute and such service is therefore not adequate to acquire jurisdiction over the State.” Furthermore, “the court does not have discretion to disregard the defect”).

Defendant’s motion is GRANTED and the claim is DISMISSED.



August 7, 2006
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court has considered the following documents in deciding this motion:


Motion No. M-70945


Affidavit of Henry E. Pittman sworn to October 24, 2005, in support,

with Notice of Intention attached thereto......................................1



Affirmation of Joel L. Marmelstein, Esquire, Assistant Attorney

General, in opposition, with exhibit attached thereto...............2



Motion No. M-71073


Notice of Motion.....................................................................................3


Affirmation of Joel L. Marmelstein, Esquire, Assistant Attorney

General, in support, with exhibits attached thereto.....................4



Supplemental Affirmation of Joel L. Marmelstein, Esquire,
Assistant Attorney General, in support, with

exhibits attached thereto..............................................................5


Second Supplemental Affirmation of Joel L. Marmelstein, Esquire,

Assistant Attorney General, in support, ......................................6


Letter sworn to December 2, 2005, from Claimant, received in

Chambers on May 24, 2006..........................................................7


Claim No. 111651 filed with the Clerk of the Court November

21, 2005........................................................................................8