This is defendant’s motion to dismiss the claim for lack of jurisdiction.
According to defendant’s papers, claimant served a notice of intention to
file a claim on August 16, 2004, followed up by service of the instant claim on
November 14, 2005. Defendant’s answer, served on December 19, 2005,
alleged that the court lacked jurisdiction because the notice of intention was
served more than 90 days following accrual of the claim.
The claim is based on claimant’s contention that on May 15, 2004, while
he was an inmate at Shawangunk Correctional Facility working in the kitchen, he
tripped over a metal pipe protruding from the floor and broke his thumb.
Claimant alleges that defendant’s employees were negligent “in
failing to foresee the danger of having a pipe protruding from the floor in an
area where inmates are assigned to work” and also that the medical staff
at the facility were “negligent and indifferent to [his] medical needs
when treating [his injured] thumb” (Claim, ¶ 2). Specifically, he
alleges that he did not see a doctor until May 25, 2004, at which point X-rays
were ordered. The X-rays showed that claimant had a fractured thumb, and a cast
was eventually applied on June 1, 2004.
Despite asserting the jurisdictional defense in its answer, defendant chose not
to move to dismiss the claim. Three years and ten days subsequent to the
accrual of claimant’s negligence cause of action (see CPLR 214, Court
of Claims Act § 10), defendant had a change of heart and the instant
motion papers were served and filed.
In support of the motion, defense counsel asserts that the notice of intention
was served more than 90 days following accrual of the claim (specifically, on
the 93rd day) and that, since the jurisdictional requirements of the Court of
Claims Act must be strictly construed (specifically, Court of Claims Act §
10, requiring service of a claim or notice of intention within 90 days
following accrual), the claim must be dismissed.
In opposition, claimant points out that defendant completely ignores the
existence of his second cause of action alleging indifference to his medical
needs and a failure to provide appropriate medical services until May 25, 2004.
He notes that since the notice of intention was served well within 90 days from
that date, there is no issue of timeliness with respect to that cause of action.
Defendant did not submit reply papers and did not respond to claimant’s
contention in this regard which is, in any event, clearly correct. Thus, the
motion must be denied with respect to the second cause of action.
Regarding the negligence cause of action, claimant maintains that he deposited
his notice of intention in the facility’s mailbox, in Ulster County, on
Tuesday, August 10, 2004 and points out it was postmarked on Wednesday, August
11. He notes that if it had been received in the Attorney General’s
Office on Friday, August 13, it would have been timely and he questions the
assertion that it was not received in the office until five days after it was
mailed, given the proximity of Ulster County to Albany. He asserts that it was
likely received on Friday, August 13 but not date-stamped until the following
As noted, defendant did not submit reply papers. The sole ground for the
requested dismissal of the claim is a photocopy of the notice of intention and
its envelope, date-stamped August 16, 2004. While the court does not agree with
claimant that there is “no way” it could have taken the U.S. Postal
Service five days to deliver a piece of mail from Ulster County to Albany, in
view of claimant’s specific allegations, it would seem incumbent on
defendant to produce some probative evidence – e.g., an affidavit from
someone with knowledge of when this notice of intention was served, or at least
with knowledge of the prevailing mailroom procedures in the Attorney
General’s Office in Albany in August, 2004 – in support of its
request to dismiss the claim. Since relief pursuant to §10(6) is now
foreclosed, the date of delivery (i.e., the 90th day vs. the 93rd day following
accrual) is crucial. Under these circumstances, simply submitting a copy of a
rubber stamp as an exhibit to an affirmation that was misleading and incorrect
in other aspects (the mistaken assertion that the court allegedly lacked
jurisdiction over the claim, rather than over only one portion of the claim),
does not suffice.
Accordingly, the motion is denied in all respects, without prejudice with
respect to the negligence cause of action. Defendant may renew its request to
dismiss the negligence cause of action for lack of jurisdiction arising from
alleged untimely service of the notice of intention, upon a proper evidentiary
predicate, at trial.