New York State Court of Claims

New York State Court of Claims

EDELL v. THE STATE OF NEW YORK, #2007-009-046, Claim No. 113760, Motion Nos. M-73601, CM-73684


Synopsis


Defendant’s motion to dismiss the claim based upon insufficiency of the notice of intention, improper service of the claim, failure to include the total sum claimed and failure to provide a certificate of merit was denied, and claimant’s cross-motion to amend his claim was denied as moot.

Case Information

UID:
2007-009-046
Claimant(s):
DANIEL EDELL
1 1.
The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court.
Claimant short name:
EDELL
Footnote (claimant name) :

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

Third-party defendant(s):

Claim number(s):
113760
Motion number(s):
M-73601
Cross-motion number(s):
CM-73684
Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
MANUEL MOSES, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General
BY: Michael R. O’Neill, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
December 19, 2007
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant has brought a motion (M-73601) seeking an order dismissing the claim. Claimant has responded with a cross-motion (CM-73684) not only opposing the relief sought by defendant, but also seeking permission to amend his claim and for permission to provide a certificate of merit. The following papers were considered by the Court in connection with these motions:
Notice of Motion, Affirmation, with Exhibits (M-73601) 1,2


Notice of Cross-Motion, Affirmation, with Exhibits (CM-73684) 3,4

In his claim, claimant seeks damages for an injury to his left arm which allegedly occurred on January 5, 2007, when claimant, an inmate under the care and custody of the New York State Department of Correctional Services, was performing duties in a work detail while he was housed at the Willard Drug Treatment Center. Claimant apparently also seeks damages for medical negligence and/or malpractice for the medical treatment received by him for this injury.

In its motion to dismiss, defendant seeks dismissal of the claim based upon four separate grounds, to wit: (1) insufficiency of the notice of intention; (2) improper service of the claim; (3) failure to include the “total sum claimed” in the claim; and (4) failure to provide a certificate of merit with regard to the medical malpractice cause of action alleged in the claim. The Court will separately address each of these issues herein.

1. INSUFFICIENCY OF THE NOTICE OF INTENTION

Claimant, at the time proceeding pro se, served a notice of intention to file a claim upon the Attorney General on April 4, 2007. Service was presumably accomplished by certified mail, return receipt requested, as required by statute (Court of Claims Act § 11[a]). Defendant does not object to either the timeliness or manner of service of this notice of intention, but contends that the notice of intention did not accurately set forth the location where the potential claim accrued.

There is no dispute that claimant, in his notice of intention, stated that his injury occurred in the County of Willard, New York, and no such county exists by that name in this State. Claimant presumably was referring to the Willard Drug Treatment Center, where he was then incarcerated, which is located in Seneca County.

The purpose of a notice of intention, which is not considered a pleading, is two-fold: it places the State on notice of a potential claim, thereby providing the State with information to conduct a meaningful investigation into the circumstances of that potential claim, and it also extends the time in which a claimant may interpose a claim against the State. A notice of intention need not satisfy the specific pleading requirements of a claim, as long as it is sufficient to provide the State with notice of the general nature of the claim (Hood v State of New York, 113 Misc 404) and it should not be scrutinized as strictly as a pleading (Schwartzberg v State of New York, 121 Misc 2d 1095).

In this particular matter, the State, upon receipt of claimant’s notice of intention, was well aware that claimant was an inmate incarcerated under the care and custody of the Department of Correctional Services. Despite claimant’s inaccurate reference to the “County of Willard” in his notice of intention, the Court does not believe that the State was hindered in any way whatsoever from conducting an investigation based upon the other information contained in that notice. The Court therefore finds that claimant sufficiently described the location where his injury occurred and that the notice of intention was sufficient to place the State on proper notice of a potential claim.

MANNER OF SERVICE OF THE CLAIM

Following service of his notice of intention, claimant apparently obtained an attorney who prepared the within claim. This claim was served upon the Attorney General on May 30, 2007, and was filed with the Clerk of the Court of Claims on May 29, 2007. The claim was admittedly served upon the Attorney General by Federal Express, and not by certified mail, return receipt requested.

Pursuant to Court of Claims Act § 11(a), a claim or a notice of intention must be served upon the Attorney General either personally or by certified mail, return receipt requested. Service by Federal Express delivery does not comply with the specific requirements of this statute, and therefore is insufficient to acquire jurisdiction (LaFrance v State of New York, 147 AD2d 985; lv denied 74 NY2d 604).

According to his affirmation set forth in the cross-motion papers, claimant’s attorney apparently realized that the claim had not been properly served, and affirms that the claim has now been re-served upon the Attorney General by certified mail, return receipt requested, on June 18, 2007 (see Exhibit 1 to Items 3,4).

Since this Court has determined herein that claimant has timely and properly served a notice of intention pursuant to Court of Claims Act § 10(3), claimant then had two years from the date of accrual of his cause of action to properly serve and file his claim. From the papers submitted with his cross-motion, it now appears that claimant has properly and timely served the Attorney General with this claim.

FAILURE TO INCLUDE A TOTAL SUM CLAIMED

It is apparent that this aspect of defendant’s motion is based upon the recent Court of Appeals decision of Kolnacki v State of New York, (8 NY3d 277), in which that Court held that the failure of a claimant to include the total sum of monetary damages in the claim, as required by Court of Claims Act § 11(b), constituted a jurisdictional defect requiring dismissal of the claim.

While this motion and cross-motion were pending, however, § 11(b) of the Court of Claims Act was amended (L 2007, ch 606), and this section now provides that a sum certain is no longer required to be stated in a claim for personal injury, medical, dental, or podiatric malpractice, or in wrongful death suits. As provided by this legislation, the amendment to § 11(b) applies to claims pending in the Court of Claims on its effective date (August 15, 2007).

Accordingly, based upon the recent amendment of Court of Claims Act § 11(b), the claim herein is not jurisdictionally defective, notwithstanding the absence of an ad damnum clause.

FAILURE TO PROVIDE A CERTIFICATE OF MERIT

Defendant also contends that claimant failed to provide a certificate of merit with this claim, as required by CPLR § 3012-a. Claimant’s attorney, in his cross-motion papers, has now included such a certificate of merit. Defendant is correct in noting that claimant initially failed to comply with CPLR § 3012-a, as there is no indication that a certificate of merit was served and filed with his claim with respect to the medical malpractice cause of action. It has been held, however, that the initial failure to serve and file such a certificate does not equate to a default in pleading, and therefore a dismissal of the action should not immediately result from such failure (Dye v Leve, 181 AD2d 89; Kolb v Strogh, 158 AD2d 15). Since claimant’s attorney has now served the required certificate of merit with his cross-motion papers, defendant’s argument on this point has been rendered moot.

Accordingly, after consideration of each contention raised by defendant, the Court finds and determines that dismissal of this claim is not warranted. As a result, claimant’s cross-motion seeking permission to amend his claim (as well as for permission to serve and file a certificate of merit) has been rendered moot.

In light of the foregoing, it is therefore

ORDERED, that Motion No. M-73601 is hereby DENIED; and it is further

ORDERED, that Cross-Motion No. CM-73684 is also DENIED as moot.


December 19, 2007
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims