New York State Court of Claims

New York State Court of Claims

DAVIS v. THE STATE OF NEW YORK, #2006-042-503, Claim No. 107278, Motion No. M-72510


Synopsis


This is a motion brought by the defendant for an order dismissing the claim of the claimant for lack of subject matter jurisdiction and/or lack of personal jurisdiction over the defendant. Defendant’s motion is granted.

Case Information

UID:
2006-042-503
Claimant(s):
JESSIE DAVIS, JR. #00-B-0069
Claimant short name:
DAVIS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107278
Motion number(s):
M-72510
Cross-motion number(s):

Judge:
NORMAN I. SIEGEL
Claimant’s attorney:
JESSIE DAVIS, JR., PRO SE
Defendant’s attorney:
HON. ELIOT SPITZER
Attorney General of the State of New YorkBy: G. LAWRENCE DILLON, ESQ., AAG
Third-party defendant’s attorney:

Signature date:
January 9, 2007
City:
Utica
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant has brought this motion seeking an order to dismiss the claim on the grounds that the Court lacks subject matter jurisdiction and/or personal jurisdiction over the defendant. The following papers were considered by the Court:
  1. Notice of Motion, filed November 8, 2006
    1. Affirmation of G. Lawrence Dillon, Esq., dated November 6, 2006
    2. Exhibits A - E, annexed to the moving papers
_________________________________________________________________

This claim comes before the court on a motion by defendant, pursuant to CPLR Rule 3211 and the Court of Claims Act § 10 and § 11 to dismiss the claim on the grounds that the court lacks subject matter jurisdiction and/or personal jurisdiction over the defendant. Defendant contends that the claim was neither timely served nor properly served in accordance with statutory requirements. Claimant failed to submit opposition to the motion.

According to the underlying claim, claimant seeks damages for injuries allegedly sustained on February 7, 2001. While the allegations of the claim are expansive, it appears that claimant maintains that because of the defendant’s negligence or malpractice, claimant - then an inmate - sustained personal injuries in the collapse of a bunk bed. It is claimant’s contention that the bunk bed was defective, and that claimant’s medical conditions, including vertigo, should have precluded his assignment to the upper level of the bunk bed.

The Attorney General avers that claimant sent a Notice of Intention to File a Claim to the Attorney General by certified mail, return receipt requested, on March 22, 2001. However, it was not until February 4, 2003 that the claimant, by regular mail, served a copy of the claim on the Attorney General. Defense counsel states that no other personal service of the claim has been made upon the Attorney General. It is the contention of defendant that the service of the claim by regular mail was improper, and thus now the two-year deadline for the timely and proper service of the claim has expired.

Court of Claims Act § 11 mandates that service upon the Attorney General shall be by personal service or by certified mail, return receipt requested. As noted above, the Attorney General maintains that service was made by regular mail and attaches as an exhibit the envelope in which the claim arrived at the Attorney General’s office.

Inasmuch as there is no controversy over the facts of service as alleged by the defendant, the court accepts as true all of the factual allegations relative to service and jurisdiction. The Court of Appeals has clearly stated that the “requirements of ... section 11 of the Court of Claims Act are jurisdictional in nature and, therefore, must be strictly construed” (Finnerty v NYS Thruway Authority, 75 NY2d 721, 722, citing with favor, Buckles v State of New York, 221 NY 418, 423 - 424). In Finnerty, where the Attorney General had not been properly served under CCA § 11, the court found that the failure to properly serve under Section 11 resulted “not in a failure of personal jurisdiction ... but in a failure of subject matter jurisdiction which may not be waived.” (Finnerty v NYS Thruway Authority, 75 NY2d 721, 723).

Furthermore, this action is now barred by the time limitations set forth in Court of Claims Act § 10. The legal right to bring this claim - whether denominated as one for medical malpractice or negligence - is barred by any applicable time limitation of the Court of Claims Act. Not merely has the two-year limitation of CCA § 10 (3) expired, more than five years has passed since the cause of action arose. The requirements of the Court of Claims Act § 10 (3) are jurisdictional and thus obligatory (Phillips v State of New York, 237 AD2d 590).

The defendant’s motion to dismiss the claim, pursuant to CPLR 3211 on the grounds that the court lacks both personal and subject matter jurisdiction as a result of claimant’s failure to effectuate proper or timely service is granted.



January 9, 2007
Utica, New York

HON. NORMAN I. SIEGEL
Judge of the Court of Claims