New York State Court of Claims

New York State Court of Claims

LYNCH v. THE STATE OF NEW YORK, #2007-030-553, Claim No. 108132, Motion Nos. M-72868, CM-73011


Synopsis


Claimants’ motion to amend claim nunc pro tunc to reflect appointment of co-guardians, and to “withdraw” “respondents’ Fifth, Sixth and Seventh Affirmative Defense” denied. Defendant’s cross-motion to dismiss the claim granted. Claimants’ incapacitated person may be a person under legal disability per CPLR §208 entitled to the benefit of the tolling provisions of Court of Claims Act §10(5). If under legal disability at time Notice of Intention served, service of same unnecessary. If not, service untimely. Claim also not served by proper means. If not under legal disability, late claim relief no longer available for claims of assault and negligent supervision triggered by alleged attack on incapacitated person on January 17, 2003. Claimants filed another claim alleging same underlying facts, still pending. [Claim No.113645]

Case Information

UID:
2007-030-553
Claimant(s):
LEILA LYNCH and KEVIN LYNCH, as the co-guardians of the person of RONALD LYNCH
1 1.The caption has been amended per so ordered Stipulation filed September 22, 2006
Claimant short name:
LYNCH
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended per so ordered Stipulation filed September 22, 2006
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108132
Motion number(s):
M-72868
Cross-motion number(s):
CM-73011
Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
WEITZ, KLEINICK & WEITZ, LLPBY: KIM E. MAZZATTO, ESQ. and JEFFREY S. MATTY, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: JOSEPH L. PATERNO, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
August 29, 2007
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers were read and considered on claimants’ motion to amend the pleadings nunc pro tunc to reflect appointment of co-guardians, and to “withdraw” “respondents’ Fifth, Sixth and Seventh Affirmative Defense” [M-72868] and on defendant’s cross-motion to dismiss the claim [CM-73011]:
1,2 Notice of Motion; Affirmation by Kim E. Mazzatto, attorney for claimants and attached exhibits

3.4 Notice of Cross-Motion; Affirmation by Joseph L. Paterno, Assistant Attorney General and attached exhibits

  1. Affirmation in Opposition to the State of New York’s Cross-Motion to dismiss the Claim and in further support of Claimants’ motion by Jeffrey S. Matty, attorney for claimants and attached exhibits
  1. Reply Affirmation in Support of Defendant’s Cross-Motion by Joseph L. Paterno, Assistant Attorney General
7,8 Filed Papers: Claim, Answer

This claim arises from the alleged assault by a fellow patient of Ronald Lynch, while he was a patient at the Bronx Psychiatric Center, on or about January 17, 2003. A claim was filed in the Office of the Chief Clerk of the Court of Claims on August 12, 2003, alleging in part that a Notice of Intention to file a claim was “filed” in the Office of the Attorney General on May 2, 2003. The affidavits of service appended to the claim do not specifically indicate that the claim itself was ever served on the Attorney General’s Office. An answer was served by the defendant on September 5, 2003.

In connection with the present motion practice, the Assistant Attorney General acknowledges that the Notice of Intention was served personally on the Office of the Attorney General on May 2, 2003: 105 days after the claim’s accrual. He notes that the claim was personally served on the Office of Mental Health on July 30, 2003, but was never served on the Office of the Attorney General as required. [See Affirmation in Support of Defendant’s Cross-Motion and in Opposition to Claimants’ Motion by Joseph L. Paterno, Assistant Attorney General, ¶4, Exhibit A].

In its Answer, in addition to general denials, the Defendant asserts eight affirmative defenses, including a fifth affirmative defense noting that the Court lacks jurisdiction because claimants failed to timely serve the Notice of Intention, and to timely and properly serve the claim upon the Attorney General’s Office as required; a sixth affirmative defense asserting that the court lacks jurisdiction because the Notice of Intention did not adequately describe the location of the incident alleged in the claim rendering the claim untimely because the Notice of Intention was ineffective; and a seventh affirmative defense asserting that the claim itself fails to comply with the statutory requirements of Court of Claims Act §11 in that it does not include an adequate description of the location of the incident alleged in the claim or how the incident occurred. Additionally, the answer contains an eighth affirmative defense that the Court of Claims does not have jurisdiction over the named defendant Bronx State Psychiatric Center.

In the motion in chief, claimants, co-guardians of the person of Ronald Lynch, apparently appointed by order of the Bronx County Supreme Court on May 6, 2005,[2] seek an order amending all of the pleadings in the claim to reflect the appointment nunc pro tunc, and dismissing defendant’s fifth, sixth and seventh affirmative defenses. In its cross-motion, defendant seeks an order dismissing the claim based upon these same defenses.

Court of Claims Act §11(b) requires that a Notice of Intention “. . . state the time when and place where such claim arose, [and] the nature of same . . . ” The purpose of the Notice of Intention is to put the Defendant State on notice of a potential suit against it, so that it may investigate the claim and infer a theory of liability. It also acts to extend the period within which a Claim must be served and filed, provided it has been properly served and contains the required information. While it need not be scrutinized with the same attention as a pleading, it should nonetheless perform its notice function, as well as provide specific enough information to determine whether any subsequently served and filed Claim is timely filed. It must be served on the appropriate party by the proper means within ninety (90) days of accrual of the claim. If it is not served within that time period, or is otherwise defective, then it does not operate to extend the time within which to serve and file a claim.

It also appears that Ronald Lynch may be a person under a legal disability [see Civil Practice Law and Rules §208][3], entitled to the benefit of the tolling provisions of Court of Claims Act §10(5)[4] allowing a claim to be served within two (2) years of removal of the disability [see Boland v State of New York, 30 NY2d 337 (1972); Ferrucci v State of New York, 30 NY2d 859 (1972)]; but in any event not later than ten (10) years after the accrual of the claim with respect to a disability premised on insanity. [See Civil Practice Law and Rules §208; Thomas v State of New York, UID # 2007-028-550, Claim No. 105847, Motion Nos. M-66169, CM-71483, July 5, 2007, Sise, P.J.]. If he is a person under a legal disability due to mental incapacity, such disability - and the attendant tolls - is not removed by the appointment of a guardian. See Young v State of New York, 92 Misc 2d 795, 799 (Ct Cl 1978).[5] The legal disability is personal to the individual who suffers from the infirmity.

Even assuming the Notice of Intention was adequate and timely, however, the fact that the claim itself was not served properly, that is, personally upon the Attorney General’s Office, or by certified mail, return receipt requested, and given that the defense was properly asserted in defendant’s answer, the claim is nonetheless dismissed for lack of personal jurisdiction. Court of Claims Act §11(a) requires that a Notice of Intention - as well as the claim - be served upon the attorney general either personally, or by certified mail, return receipt requested, or by facsimile transmission under limited circumstances, within the times prescribed in Court of Claims Act §10. Service is complete when it is received in the Attorney General’s Office. Court of Claims Act §11(a)(i). Personal service is accomplished by service upon the Attorney General or an Assistant Attorney General. See Civil Practice Law and Rules §307. It is not accomplished by serving an agency of the state - such as the Office of Mental Health - alone. Accordingly, the service accomplished here is inadequate.

If Ronald Lynch was under a legal disability at the time the Notice of Intention was personally served, service of such notice was unnecessary. If he was not under a legal disability at the time, the service was untimely, and thus did not operate to extend the time within which to serve and file his claim. In any event, and as noted above, the claim itself was not properly served regardless of the status of Ronald Lynch, and must, therefore, be dismissed.[6]

Late claim relief is either unnecessary (if he is under a legal disability) or untimely (if he is not under a legal disability). Assuming that Ronald Lynch is indeed under a legal disability - or was under a legal disability at the time of accrual of the claim on January 17, 2003 - the time within which to serve and file his claim expires either on January 17, 2013, or within two (2) years of the time his disability ends, or at the time he dies while still disabled, whichever event occurs first. Civil Practice Law and Rules §208; Court of Claims Act §10(5). Such disability is suggested by his confinement in a State psychiatric facility in any event. See Young v State of New York, supra, at 798. It is not clear whether he is presently so confined, or whether any confinement is voluntary or involuntary.

Assuming that Ronald Lynch is not under a legal disability, late claim relief under Court of Claims Act §10(6) is not available. Such a motion must be timely brought “. . . 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 . . . ” Court of Claims Act §10(6) . Here, the applicable statute of limitations is three (3) years for a claim of negligent supervision, or one (1) year for an intentional tort, thus a motion for late claim relief would be untimely, premised upon an accrual date of January 17, 2003. See Civil Practice Law and Rules §§214, 215.

Accordingly, and based on the foregoing, claimants’ motion [M-72868] is in all respects denied, and defendant’s cross-motion to dismiss the claim [CM-73011] is hereby granted, and Claim number 108132 is in all respects dismissed.

August 29, 2007
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[2].See Affirmation in Support of Defendant’s Cross-Motion and in Opposition to Claimants’ Motion by Joseph L. Paterno, Assistant Attorney General, Exhibit F.
[3]. Civil Practice Law and Rules §208 provides in pertinent part: “Infancy, insanity. If a person entitled to commence an action is under a disability because of infancy or insanity at the time the cause of action accrues, and the time otherwise limited for commencing the action is three years or more and expires no later than three years after the disability ceases, . . . the time within which the action must be commenced shall be extended to three years after the disability ceases . . . ; if the time otherwise limited is less than three years, the time shall be extended by the period of disability. The time within which the action must be commenced shall not be extended by this provision beyond ten years after the cause of action accrues, except, in any action other than for medical, dental or podiatric malpractice, where the person was under a disability due to infancy . . . ”
[4]. Court of Claims Act §10(5) provides: “If the claimant shall be under legal disability, the claim may be presented within two years after such disability is removed.”
[5]. “The thrust of Boland, (supra) is clearly that the incompetent himself need not file within 90 days after his disability is actually removed. It would therefore be inconsistent to hold that the merely artificial removal of the incompetent’s ability to sue by the appointment of a committee sets the 90 days running again. Neither the Court of Claims Act nor the State Constitution prescribes such a disparity of treatment between the committee and his incompetent.” Young v State of New York, supra, at 799.
[6]. Significantly, the court takes judicial notice of the fact that the claimants have served and filed an additional claim, assigned to this court, alleging essentially the same underlying facts. [See Leila Lynch and Kevin Lynch, as Co-Guardians of the person of Ronald Lynch, Claim Number 113645, filed May 3, 2007]. According to the affidavit of service filed with the claim, it was served personally upon the Attorney General’s Office on May 2, 2007. Issue has been joined by service of an Answer on or about May 11, 2007.