New York State Court of Claims

New York State Court of Claims

ROSARIO v. THE STATE OF NEW YORK, #2006-030-563, Claim No. 111153, Motion Nos. M-71488, CM-71702, CM-71791


Synopsis



Case Information

UID:
2006-030-563
Claimant(s):
CARLOS ROSARIO
Claimant short name:
ROSARIO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111153
Motion number(s):
M-71488
Cross-motion number(s):
CM-71702, CM-71791
Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
KOOB & MAGOOLAGHANBY: ELIZABETH L. KOOB, ESQ.
Defendant’s attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERAL
BY: BARRY KAUFMAN, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
August 21, 2006
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1 to 10 were read and considered on Claimant’s motion for a stay pending resolution of claimant’s federal civil rights action, on Defendant’s cross-motion to dismiss, and on Claimant’s cross-cross-motion:
1,2 Notice of Motion; Affidavit by Elizabeth L. Koob, Attorney for Claimant and attached exhibits

3,4 Notice of Cross-Motion; Affirmation in Opposition to Claimant’s Motion and in Support of Defendant’s Cross-Motion by Barry Kaufman, Assistant Attorney General and attached exhibits

5,6 Notice of Cross-Cross-Motion; Affirmation in Reply on Claimant’s Motion, in Opposition to Defendant’s Cross-Motion and in Support of Cross-Cross-Motion by Elizabeth L. Koob, Attorney for Claimant

  1. Reply Affirmation in Opposition to Claimant’s Cross-Cross-Motion by Barry Kaufman, Assistant Attorney General and attached exhibits
8-10 Filed Papers: Claim, Answer, Decision and Order, Rosario v State of New York, Claim
No. None; Motion No. M-69064, UID #2005-030-529 (Scuccimarra, J., filed June 3, 2005)

Claimant alleges in Claim Number 111153 that Defendant’s agents at Fishkill Correctional Facility failed to provide him with adequate medical care, causing him to suffer serious injury. In its Answer, in addition to general denials, the Defendant asserts twelve affirmative defenses. In its Seventh Affirmative Defense the Defendant asserts that the Court lacks personal jurisdiction over the Defendant and subject matter jurisdiction over the Claim, because of the Claimant’s failure to serve the Claim upon the Attorney General by either certified mail, return receipt requested, or personally, as required by Court of Claims Act §11. In its Twelfth Affirmative Defense the Defendant asserts that the claim contains allegations not permitted by the Court in its Decision and Order granting late claim relief, and that service of the claim was not made in compliance with the Decision and Order. The Answer, alerting Claimant to these affirmative defenses[1], was served upon Claimant’s attorneys on August 24, 2005.

CROSS-MOTION TO DISMISS
This motion is addressed first because it disposes of the matter. Court of Claims Act §11(a)(i) requires that a claim be served upon the Attorney General either personally, or by certified mail, return receipt requested. Service upon the Attorney General is complete upon receipt. [id.]. Here, Claimant failed to effect proper service upon the Defendant and, additionally, failed to satisfy the conditions imposed by the prior Decision and Order granting late claim relief. Claimant readily concedes that the claim was served only by ordinary mail, and that the Defense was stated with particularity in the Answer, but nonetheless misapprehends the effect of failing to properly serve the Claim in the Court of Claims. [Affirmation in Reply on Claimant’s Motion, in Opposition to Defendant’s Cross-Motion, and in Support of Cross-Cross-Motion by Elizabeth L. Koob, ¶3].

The filing and service requirements contained in Court of Claims Act §§10 and 11 are jurisdictional in nature and must be strictly construed. Dreger v New York State Thruway Auth., 81 NY2d 721, 724 (1992); Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 (1989); Rodriguez v State of New York , 307 AD2d 657 (3d Dept 2003); see also Welch v State of New York, 286 AD2d 496, 729 NYS2d 527, 529 (2d Dept 2001); Conner v State of New York, 268 AD2d 706, 707 (3d Dept 2000). 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 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)[2]; Edens v State of New York, 259 AD2d 729 (2d Dept 1999); Philippe v State of New York, 248 AD2d 827 (3d Dept 1998). 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). Here, the Claimant has not been able to establish that he served the Claim upon the Attorney General as required, and the Defendant has raised the jurisdictional issue in the Seventh Affirmative Defense in its Answer. 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)(i).

Additionally, Counsel has failed to comply with the conditions required to give this Court jurisdiction over an otherwise untimely served and filed claim, as set forth in the Decision and Order granting late claim relief in the first instance. Court of Claims Act §10(6). Indeed, the Decision and Order refers to the jurisdictional requirement by noting in the decretal paragraph that the service and filing of the claim was “to be in accordance with the Court of Claims Act, with particular reference to §§10, 11 and 11-a, and the Uniform Rules for the Court of Claims.” [Rosario v State of New York, Claim No. None, Motion No. M-69064 (Scuccimarra, J., June 3, 2005]. On this basis, too, the Claim is subject to dismissal.
The Court notes that when considered it has been generally held - as pointed out by the Defendant - that the portion of Civil Practice Law and Rules §3211(e), requiring that a motion to dismiss based upon a failure to effect proper service be made within sixty (60) days of service of the pleading containing the defense, does not apply in the Court of Claims. Diaz v State of New York, 174 Misc 2d 63 (Ct Cl 1997); Libbett v State of New York, UID#2000-005-529, Claim No. 97634, Motion No. M-61899 (Corbett, J., August 17, 2000); LaPlant v State of New York, UID #2004-015-590, Claim No. 105815 (Collins, J., February 10, 2004).

Notably, in Reed v State of New York, 147 AD2d 767 (3d Dept 1989), the concern was the State’s failure in both actions considered on appeal to raise the jurisdictional defense in its Answer: not the issue here. To the same effect are the other cases[3] referred to by Claimant: interpretation of waiver - and whether personal or subject matter jurisdiction is invoked - based upon the State’s failure to assert the jurisdictional defense in its Answer, or to make a pre-Answer motion. See Baggett v State of New York, 124 AD2d 969 (4th Dept 1986); Thomas v State of New York, 144 AD2d 882 (3d Dept 1988); Colon v State of New York, 146 Misc 2d 1034 (Ct Cl 1990). Since the State raised the failure to properly serve the Defendant in its Answer, the discussion is academic.

Even as a matter of statutory construction, review of Civil Practice Law and Rules §3211(e) reveals that the given limitation applies to objections as to the proper service of a

“. . . summons and complaint, summons with notice, or notice of petition and petition . . .”, not a “claim . . . a unique creation of the Court of Claims Act . . .” [Reply Affirmation by Barry Kaufman, ¶3]. Moreover, Court of Claims Act §11(c) sets forth its own requirements for the preservation of jurisdictional defenses. Accordingly, the Civil Practice Law and Rules would not apply in this instance in any event. See Court of Claims Act §9(9).

Defendant’s cross-motion to dismiss [CM-71702] is hereby granted, and Claim number 111153 is hereby dismissed in its entirety.
CLAIMANT’S CROSS-CROSS-MOTION
Claimant seeks alternative relief in his cross-cross-motion [CM-71791], including allowing him additional time to serve the claim upon the Attorney General, or for reconsideration of the Claimant’s motion under Court of Claims Act §10(8).

A motion for permission to serve and file a late claim, or a motion to have previously served Notices of Intention to File a Claim be treated as claims must be made within the limitations periods provided for in the Civil Practice Law and Rules for the causes of action that would be asserted thereunder. Court of Claims Act §§10(6) and 10(8). An action for medical malpractice must be brought “within two years and six months of the act, omission or failure complained of or last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure . . .” Civil Practice Law and Rules §214-a. Negligence actions alleging personal injury must be brought within three (3) years. Civil Practice Law and Rules §214(5). Under the continuous treatment doctrine, the time in which to bring a malpractice action is stayed “when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint.” Borgia v City of New York, 12 NY2d 151, 155 (1962).

Assuming the same dates of accrual used in the claim for the various causes of action asserted - all falling within January 2002 and October 2003[4] - the time within which to bring an additional motion for late claim relief, or to ask the Court to treat the notice of intention as a claim, has expired for most of the causes of action asserted in Claim Number 111153.[5] Notably, the Decision and Order granting late claim relief was filed herein on June 3, 2005, and the Answer asserting the jurisdictional defense was served one year ago as well.

With regard to reconsideration - an application that the Court has treated as one for reargument because there is no motion for reconsideration - “[a] motion for reargument, addressed to the discretion of the court, is designed to afford a party an opportunity to establish that the court overlooked or misapprehended the relevant facts, or misapplied any controlling principle of law. Its purpose is not to serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided . . . (citations omitted). Nor does reargument serve to provide a party an opportunity to advance arguments different from those tendered on the original application.” Foley v Roche, 68 AD2d 558, 567-568 (1st Dept 1979); Loris v S & W Realty Corp., 16 AD3d 729, 730 (3d Dept 2005); see Civil Practice Law and Rules §2221(d)(2). Additionally, such a motion should be brought within thirty (30) days after service of a copy of the order with notice of entry, or in any event prior to the entry of any judgment by the appellate court to which an appeal has been taken. Civil Practice Law and Rules §2221(d)(3); see Bray v Gluck, 235AD2d 72 (3d Dept 1997), lv dismissed, 91 NY2d 1002 (1998).

Even assuming the motion was timely, the papers submitted do not establish that the Court misapplied any controlling principle of law with regard to Claimant’s earlier application pursuant to Court of Claims Act §10(8); therefore Claimant’s application for reargument, is denied as well. Claimant’s cross-cross-motion [CM-71791] is denied in all respects.
CLAIMANT’S MOTION FOR A STAY
Civil Practice Law and Rules § 2201, applicable in the Court of Claims pursuant to Court of Claims Act § 9(9), provides that “. . . [e]xcept where otherwise prescribed by law, the court in which an action is pending may grant a stay of proceedings in a proper case, upon such terms as may be just.” The party seeking the stay must show “good cause.”

In this case, Claimant has another action pending in the federal court, commenced on or about January 21, 2005, in which issue has been joined and discovery scheduled. [Affidavit by Elizabeth L. Koob, Exhibits 1, 2 and 5]. Claimant indicates that successful litigation of the federal claim would provide him with the full remedy sought in the claim before this Court. Under such circumstances, litigants in this Court frequently will enter into a Stipulation and Conditional Order of Dismissal such as the one appended to Claimant’s moving papers. [Ibid. Exhibit 7]. Although the discussion is somewhat academic, given the resolution of the Defendant’s cross-motion to dismiss, if Claimant should find some basis to claim relief in the Court of Claims then the parties might consider conducting joint discovery with the Assistant Attorney General handling the federal suit.

In any event, Claimant’s motion for a stay [M-71488] is denied as moot.

To summarize, Claimant’s motion for a stay [M-71488] is hereby denied, Defendant’s cross-motion to dismiss the claim [CM-71702] is hereby granted, and Claimant’s cross-cross-motion [CM-71791] is also denied, and Claim number 111153 is hereby dismissed in its entirety.


August 21, 2006
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1].An affirmative defense is raised in an Answer to provide adequate notice to the Claimant of issues of law or fact that the Defendant may raise at trial or in later motion practice. Cipriano v City of New York, 96 AD2d 817 (2d Dept 1983). Indeed, Civil Practice Law and Rules §3018(b), concerning responsive pleadings, provides in pertinent part that a “ . . . party shall plead all matters which if not pleaded would be likely to take the adverse party by surprise or would raise issues of fact not appearing on the face of a prior pleading such as . . . collateral estoppel, culpable conduct . . . or statute of limitation. The application of this subdivision shall not be confined to the instances enumerated.” A motion to dismiss such defenses may be made on the ground that “. . . a defense is not stated or has no merit.” Civil Practice Law and Rules §3211(b). Claimant did not make such a motion.
[2].“Any objection or defense based upon failure to comply with (i) the time limitations contained in section ten of this act, (ii) the manner of service requirements set forth in subdivision a of this section . . . is waived unless raised, with particularity, either by a motion to dismiss made before service of the responsive pleading is required or in the responsive pleading, and if so waived the court shall not dismiss the claim for such failure.”
[3]. See also Guy v State of New York, 50 Misc 2d 29 (Ct Cl 1966), cited by Claimant, involving a claim predating the present service provisions in the Court of Claims Act, and the responsive pleading requirements set forth under the Court Rules. 22 NYCRR §206.7.
[4]. At paragraph 5 of the Claim, Claimant indicates that “[f]rom January 23, 2002 to April 13, 2004, while under the care and custody of the Fishkill Correctional Facility, Claimant sustained severe and grievous injuries . . . when . . . denied necessary medical care . . .” No acts or omissions by the State are recited as occurring in 2004 elsewhere in the 193 paragraph claim.
[5]. Claimant does not move for late claim relief herein, but rather seeks modification of the prior order granting same.