New York State Court of Claims

New York State Court of Claims

DESNOYERS v. THE STATE OF NEW YORK, #2006-037-007, Claim No. 111259, Motion No. M-71369


Synopsis


This intentional tort claim was dismissed for improper service pursuant to § 11 (a) of the Court of Claims Act.

Case Information

UID:
2006-037-007
Claimant(s):
NORMAN R. DESNOYERS, 01-A-6719
Claimant short name:
DESNOYERS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111259
Motion number(s):
M-71369
Cross-motion number(s):

Judge:
JEREMIAH J. MORIARTY III
Claimant’s attorney:
Norman R. Desnoyers, Pro Se
Defendant’s attorney:
Hon. Eliot Spitzer
New York State Attorney General
By: Paul Volcy, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 5, 2006
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The Defendant moves the Court for an order dismissing the claim for lack of jurisdiction. The following were read and considered with respect to Defendant’s motion:
1. Notice of motion dated February 27, 2006, and supporting affirmation of Assistant

Attorney General Paul Volcy dated February 28, 2006, with attached Exhibits A-E;

2. Claimant’s notice of motion[1] dated March 6, 2006, and Claimant’s answer to

defendant’s motion to dismiss[2] dated March 6, 2006, with attached Exhibits A-E.


Filed papers: Claim filed August 15, 2005;[3] Answer filed May 31, 2005.[4]


This is a claim for assault and battery which arose on February 23, 2005, when the pro se Claimant was allegedly attacked by correction officers at Lakeview Shock Incarceration Correctional Facility where he was incarcerated. The Defendant moves to dismiss the claim alleging that the Court has no jurisdiction as the notice of intention to file a claim and the claim were served by ordinary mail. This argument was raised with particularity as an affirmative defense in the Defendant’s answer in compliance with § 11 (c) of the Court of Claims Act.

According to the supporting affirmation of Assistant Attorney General Paul Volcy, a notice of intention to file a claim and a claim were served simultaneously on the Attorney General’s Office by regular mail on April 20, 2005, in a large manila envelope. Both asserted assault and battery causes of action (see Exhibit B attached to the affirmation of Assistant Attorney General Paul Volcy). Defendant attaches to its motion papers, as Exhibit A, a copy of the manila envelope in which both the notice of intention and the claim were served on the Attorney General’s Office. This envelope shows a postmark of April 18, 2005, with postage of 46 cents. It bears no indicia of mailing by certified mail, return receipt requested. There is no affidavit of service attached to the claim as served or filed. There is, however, an affidavit of service of the notice of intention to file a claim. This affidavit indicates that the notice of intention was served on the Attorney general’s Office by “standard delivery.”

Pursuant to § 10 (3-b) of the Court of Claims Act, a claim based on an intentional tort such as assault and battery must be filed and served upon the Attorney General within 90 days of accrual, unless a notice of intention to file a claim is served within the same 90 day period, in which event the claim must be filed within one year after the accrual of the claim. Court of Claims Act § 11 (a) requires that service upon the Attorney General be accomplished by personal service or by certified mail, return receipt requested (see Hodge v State of New York, 213 AD2d 766 [1995], app dismissed 87 NY2d 968 [1996]).The use of ordinary mail to serve the Attorney General is insufficient to confer jurisdiction (Bogel v State of New York, 175 AD2d 493 [1991]).

Claimant admits in his opposing papers that the claim and notice of intention were served by regular mail. He alleges, however, that service by regular mail was proper because he had given the Attorney General proper and timely notice of the claim and because he had notified the Court of his intention to file by regular mail by submitting a motion with an accompanying affidavit to proceed as a poor person pursuant to CPLR § 1101. Contrary to Claimant’s argument, however, the filing and service requirements of §§ 10 and 11 of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]; Martinez v State of New York, 282 AD2d 580 [2001], lv denied 96 NY2d 720 [2001]. “[N]otice received by means other than those authorized by statute cannot serve to bring a defendant within the jurisdiction of the court” (Feinstein v Bergner, 48 NY2d 234, 241 [1979]), and the Court is without discretion to waive these requirements. As a result, the claim must be dismissed due to Claimant’s failure to comply with the service requirements of the Court of Claims Act.

Nor may Claimant avail himself of § 10 (6) of the Court of Claims Act which allows claimants to seek permission to file a late claim. Pursuant to this section, a claimant who has failed to timely file or serve the Attorney General with a claim or notice of intention to file a claim may, “in the discretion of the Court, be permitted to file such claim at any time 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.” Under CPLR § 215, an action to recover damages for assault or battery must be commenced within one year. Here, the claim is alleged to have accrued on February 23, 2005. Under § 10 (6) of the Court of Claims Act, any motion for permission to late file a claim had to be commenced by February 23, 2006, within one year of the accrual date. Because no such motion was made, and because no such motion may now be made, the dismissal of the claim is with prejudice.

Accordingly, it is hereby

ORDERED, that Defendant’s motion to dismiss the claim (M- 71369) is granted, and it is further

ORDERED, that Claim No. 111259 be dismissed, with prejudice.

The Clerk of the Court is directed to close the file.



May 5, 2006
Buffalo, New York

HON. JEREMIAH J. MORIARTY III
Judge of the Court of Claims




[1]. Claimant seeks by his “notice of motion” an order dismissing Defendant’s motion. Because his papers do not request any new relief and merely request the denial of Defendant’s motion, Claimant’s motion papers have been received as papers in opposition to Defendant’s motion and not as a separate motion or cross-motion.
[2]. Claimant’s answer is titled an affirmation. Pursuant to CPLR Rule 2106, however, only an attorney or a non-party doctor, osteopath or dentist authorized to practice in the state may serve and file an affirmation in lieu of an affidavit. Here, it was incumbent upon Claimant to serve and file an affidavit in opposition to Defendant’s motion pursuant to Rule 2214 of the CPLR, which he has failed to do. Claimant’s unsworn “affirmation” could thus be treated as a nullity. The Court has nonetheless read and considered Claimant’s affirmation.
[3]. The claim served on the Attorney General’s Office (see Exhibit B attached to the supporting affirmation of Assistant Attorney General Paul Volcy) is not a verbatim copy of the claim which was eventually filed with the Clerk of the Court in August of 2005. The Attorney General’s copy and the filed copy differ in structure and format. They both allege, however, causes of action sounding in assault and battery committed by the same named correction officers on February 23, 2005.
[4]. Defendant’s answer was filed with the Clerk of the Court approximately three months before the claim was filed.