New York State Court of Claims

New York State Court of Claims

SHOMO v. THE STATE OF NEW YORK, #2007-013-008, Claim No. 112049, Motion Nos. M-72681, CM-72707, CM-72833


Claimant’s motion seeking to strike the Defendant’s answer because he had “rejected” it is denied. Defendant’s motion to dismiss for improper service is granted.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
CM-72707, CM-72833
Claimant’s attorney:
Defendant’s attorney:
Attorney General of the State of New York
BY: PAUL VOLCY, ESQ.Attorney General of the State of New York
Third-party defendant’s attorney:

Signature date:
March 30, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


On February 21, 2007, the following papers were read on motion by Claimant to compel answers to certain interrogatories and sanctions (M-72681); on cross-motion by Defendant to dismiss (CM-72707); and on cross-motion by Claimant (CM-72833) in opposition to Defendant’s cross-motion to dismiss and to strike the answer:

Notice of Motion (M-72681) and Affidavit Annexed

Notice of Cross-Motion (CM-72707), Affirmation and Exhibits Annexed

Claimant’s Cross-Motion (CM-72833) and Exhibits Annexed

Defendant’s Supplemental Affirmation

Filed Papers: Claim; Answer; Claimant’s First Interrogatories and Demands; Claimant’s Reply to Defendant’s Discovery Demands

There are three motions before the Court. In Motion No. M-72681, Claimant seeks to compel answers to certain interrogatories, as well as sanctions against the Defendant. By notice of Cross-Motion No. CM-72707, the Defendant seeks dismissal of the claim. Finally, by Cross-Motion No. CM-72833, Claimant opposes dismissal and moves to strike the Defendant’s answer.

Let’s try to sort things out. The claim herein was filed on March 6, 2006 and first describes an injury sustained by Claimant in an electrical accident on October 24, 1994 while he was a prisoner in the New York City Correctional System and alludes to certain diagnoses and treatment by one Dr. Chow. Claimant then describes additional evaluative tests on or about September 10, 1996. Claimant came into the custody of the Defendant’s Department of Correctional Services on or about November 19, 1996, when certain additional tests were undertaken. More testing took place on October 21, 1997. Claimant alleges that he underwent surgery in April 1998, with an evaluation on January 12, 1999 by a doctor for the United States Social Security Administration. The claim alleges further tests in Harlem Hospital on June 6, 1999 and on January 26, 2000 at Bellevue Hospital in New York City.

The claim notes an evaluation on September 18, 2002 by a neurologist at Coxsackie Correctional Facility. On July 14, 2004 Claimant was transferred to Wende Correctional Facility where he began to “have problems receiving assistance with his ADL’s”[1] and filed grievances.

On September 15, 2004 Claimant was allegedly sent with “only ‘half’” of his prior EMG reports, to be evaluated by Dr. Richard Cowan, apparently a neurologist at the Erie County Medical Center (ECMC), who purportedly discontinued all assistance with ADL’s. Claimant protested these results, and on January 8, 2005, the same consultant performed another examination and issued what Claimant characterized as a “flawed” report.

Accordingly, the claim alleges that it was on January 8, 2005, the date of the last consultant’s report, when he “became aware of the above malpractice, negligence and Constitutional violations” and that he “could not have discovered these violations any sooner with any amount of due diligence.” He alleges causes of action sounding in negligence relating to what he contends is a misdiagnosis. Because he learned on September 15, 2004 and December 8, 2005, that an earlier diagnosis was “wrong” and he should have had surgery in April 1997, he then alleges the negligent denial of proper medical treatment for some eight years. This, he asserts, is not only negligence, but “indifference in violation of both the State and Federal Constitutions.” He contends that his treatment went untreated for 8 ½ years because of “negligent misdiagnosis.”

The second cause of action alleges cruel and unusual punishment as a result of “misdiagnosis” and improper carpel tunnel surgery performed in April 1998 on his left hand. The cruel and unusual punishment was unnecessary surgery performed on his left hand, which he characterizes as “experimenting” and thus in violation of both State and Federal Constitutional provisions and (unspecified) statutes. He seeks $100,000,000.00, in compensatory damages for his pain and suffering.

With that generalized review of the allegations of the claim, I now consider the motions. In Motion No. M-72681, Claimant seeks to have Defendant respond to certain interrogatories. He asserts that he submitted and filed with the Clerk his first request therefor, as well as a demand for documents and certain admissions on September 12, 2006. On September 20, 2006, Defendant filed its objections, noting, inter alia, that the consultant referenced above was not an employee of the Defendant, and not under its control. Claimant thereafter made “good faith” efforts to resolve the issue in September and October 2006, but the Defendant has not altered its position. Thus, Claimant also seeks sanctions because he contends that the State’s position is meritless and thus is frivolous. He seeks to have the Court compel answers and order production of the demanded documents and $10,000.00 in sanctions.

In response thereto the State, by Cross-Motion No. CM-72707, seeks dismissal of the claim, inter alia, on the grounds of improper service by first class mail and untimely service. The Defendant characterizes the claim as one sounding in medical malpractice. It acknowledges receipt of the claim on March 3, 2006 and appends a copy of the envelope in which it was delivered by first class mail (Exhibit B to CM-72707). The Defendant’s answer, dated April 10, 2006, alleges several affirmative defenses which address jurisdictional issues, but primarily for purposes of the cross-motion here, the Fourth, Fifth and Sixth Affirmative Defenses allege, inter alia, the lack of personal and subject matter jurisdiction in that the claim was delivered by ordinary mail instead of being served personally or by certified mail return receipt requested and thus not served in compliance with Court of Claims Act §11(a). I find that these affirmative defenses were alleged with sufficient particularity (Court of Claims Act §11[c]).

Claimant, in response, opposes dismissal and brings his own cross-motion (No. CM-72833) to have the answer stricken, raising a procedural scenario requiring a further more detailed recitation. Claimant asserts that he filed [sic, means served] a “Notice of Intent” by certified mail, return receipt requested, upon the Defendant on February 22, 2005. A copy of that envelope attached as Claimant’s Exhibit 7 (Claimant’s Cross-Motion No. CM-72833) reflects service by certified mail return receipt requested, with a postmark dated February 24, 2005 and a “received” stamp by the Defendant’s Litigation Bureau of February 28, 2005. The reason that Claimant has possession of the envelope which he used to serve the Defendant is that it was rejected and returned to the Claimant on the same day as its service, February 28, 2005, as the Defendant elected to treat it as a nullity pursuant to CPLR 3022 because it was unverified (Exhibit 8 to Claimant’s Cross-Motion No. CM-72833).

The Claimant asserts that the Answer was “improperly verified and rejected by the Claimant as a nullity” because he alleges that (1) the attorney verification bares [sic] the wrong claim number; (2) Counsel’s statement pursuant to CPLR 3020 (d)(2) is not correct; (3) the attorney’s verification lists and certifys [sic] the wrong parties, and (4) several of the defenses were/are inapplicable to the instant claim and “were clearly meant for some litigation pertaining to Roswell Park.” Claimant asserts that the Defendant’s attorney verification “is without force, null and void and without any substance in law to satisfy the standard of the CPLR for properly verifying their answer and thus was properly treated as a nullity and rejected.”

The relief sought in Claimant’s Cross-Motion No. CM-72833 is significant because, if the answer was properly rejected as a nullity (Query: Whether an order to strike is needed when an answer has already been rejected as a nullity?), then any affirmative defenses relating to manner of service or timeliness of filing and service would be deemed waived (Court of Claims Act §11[c]; see e.g., Harris v State of New York, 190 Misc2d 463).

In support of Cross-Motion No. CM-72833, Claimant appends as Exhibit 9 a letter dated April 12, 2006, referencing this claim and entitled “Rejection of Unverified Answer,” reciting the four reasons recited above.

The Defendant has responded to Claimant’s Cross-Motion No. CM-72833 in a supplemental affirmation raising several issues. First, it argues that the document captioned “Opposition to the Defendant’s motion to dismiss - Cross motion to Strike Defendant’s Answer” does not contain a formal notice of motion for the relief sought, and thus it urges that any request to strike the answer should not be entertained. While there is no formal notice of motion, the relief sought is clear on the face of the document, and I reject Defendant’s argument in this regard. The Defendant suggests that the attorney’s verification of the answer was not defective as the information in paragraph 7 thereof was superfluous, and not required by CPLR 3021.

More significant, even if I were to find it defective, is the assertion, under oath, that the purported rejection letter dated April 12, 2006 (Exhibit 9 to Claimant’s Cross-Motion CM-72833) is a “prevarication,” and the affirmation that there is no record of that letter having been received and/or the answer ever having been returned. To demonstrate support for that proposition, Defendant references Claimant’s responses to its demands sworn to on April 27, 2006 (Exhibit E to Defendant’s Cross-Motion No. CM-72707) in an envelope dated May 1, 2006 (Exhibit F to Defendant’s Cross-Motion No. CM-72707). The strong inference is that since it did receive responses to its discovery demands less than three weeks after the purported rejection and return of the answer as a nullity, at the same address, it lends support to the argument that no such rejection was ever sent. Moreover, by responding to such discovery demands, the State implies that such would not have been forthcoming if indeed the answer had been rejected.

This conundrum requires resolution before any of the motions can be decided.

There is a strong incongruity in Claimant’s representations. First, if indeed he had rejected as a nullity and returned the answer to the Defendant, I find it highly unlikely that he would have responded less than three weeks later to Claimant’s discovery demands. Moreover, it similarly seems unlikely that he would have brought Motion No. M-72681 seeking to compel the answer to interrogatories, as he might well have been able to seek relief related to the purported absence of an answer.

Moreover, Claimant seems well-acquainted, and has otherwise complied, with the filing requirements of the Court of Claims (22 NYCRR 206.5) in that he filed his reply to Defendant’s demands on May 4, 2006, as well as having filed his first interrogatories and demand for documents and admissions on September 18, 2006.

However, the Court’s file contains no correspondence or filed papers contemporaneous with the purported rejection letter dated April 12, 2006. Since Claimant has demonstrated compliance with and knowledge of the Court’s filing requirements, and since he did not file anything related to his alleged rejection of the answer, based on the papers before me, I find that this letter, and the purported rejection and return of the answer never took place.

Accordingly, I first deny Claimant’s Cross-Motion No. CM-72833 seeking to strike the Defendant’s answer. Of course, I would be remiss in failing to note that the attorney’s verification of the answer is deficient in that it uses another claim number and references, in Paragraph 7, the Defendant as being the Roswell Park Cancer Institute. These are clearly erroneous. That being said, since I find that it was not rejected by the Claimant, I will now address the Defendant’s cross-motion (CM-72707) to dismiss, inter alia, for improper service by regular mail.

This ground for dismissal is addressed first, since its resolution could be dispositive of all the motions. As noted above, this defense was preserved with particularity in the answer (Court of Claims Act §11[c]).
[I]t is black letter law that service of claims by ordinary mail is insufficient to acquire jurisdiction over the State (Charbonneau v State of New York, 178 AD2d 815, 816, affd sub nom. Dreger v New York State Thruway Auth., 81 NY2d 721; Turley v State of New York, 279 AD2d 819, rearg denied 96 NY2d 855). The failure to comply with the time and manner of service requirements contained in Sections 10 and 11 of the Court of Claims Act is a fatal jurisdictional defect and deprives this Court of the power to hear the claim (Dreger v New York State Thruway Auth., 81 NY2d at 724; Bogel v State of New York, 175 AD2d 493) [see Vallen v State of New York, Ct Cl, UID #2006-013-068, Claim No. 107139, Motion No. M-71410, Oct. 23, 2006, Patti, J.].[2]

Since the claim was served by regular mail in contravention of the service requirements of Court of Claims Act §11(a), Defendant’s Cross-Motion No. M-72707 is granted and the claim is dismissed. Motion No. M-72681 is therefore denied as moot.

March 30, 2007
Rochester, New York

Judge of the Court of Claims

[1]. This seemingly refers to Activities of Daily Living.
  1. Decisions and selected orders of the New York State Court of Claims are available on the Internet at