New York State Court of Claims

New York State Court of Claims

WILLIAMS v. THE STATE OF NEW YORK, #2007-030-574, Claim No. 114007, Motion No. M-73887


Synopsis


Defendant’s pre-answer motion to dismiss granted. [Court of Claims Act §11(c)]. Notice of Intention served regular mail within 90 days of accrual of claim alleging inmate was injured while working in dining facility did not extend the time within which to serve and file a claim; nor did a Notice of Intention served via certified mail, return receipt requested 98 days after accrual. Claim itself served eighteen (18) months after accrual. No cross-motion for late claim relief before the court

Case Information

UID:
2007-030-574
Claimant(s):
NATALIE WILLIAMS
1 1.The caption has been amended to reflect the only proper defendant.
Claimant short name:
WILLIAMS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114007
Motion number(s):
M-73887
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
WILLIAM F. FARRELL, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: JEANE L. STRICKLAND SMITH, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
October 23, 2007
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers were read and considered on defendant’s pre-answer motion to


dismiss:

1,2 Notice of Motion; Affirmation in Support of Motion to Dismiss by Jeane L. Strickland Smith, Assistant Attorney General and attached exhibits

  1. Affirmation in Opposition by William F. Farrell, attorney for claimant
  1. Filed papers: Claim
Natalie Williams alleges in claim number 114007 that she was injured on January 23, 2006 while working in the dining facility at Beacon Correctional Facility, when “a metal pan fell from above and struck . . .” her face injuring her nose. [Claim Number 114007, ¶¶ 2-5]. She alleges in the claim that a notice of intention to file a claim was served on April 13, 2006.

In this pre-answer motion to dismiss, defendant seeks dismissal of the claim based upon claimant’s failure to serve same within ninety (90) days of its accrual. Defendant notes that a notice of intention to file a claim was received by the Attorney General’s Office via regular mail on or about March 9, 2006. [Affirmation in Support of Motion to Dismiss by Jeane L. Strickland Smith, Assistant Attorney General, ¶3, Exhibit A]. An additional notice of intention to file a claim was received by the Attorney General’s Office via certified mail, return receipt requested on May 1, 2006, ninety-eight (98) days after accrual of the claim. [Ibid. ¶4, Exhibit B]. Finally, the claim itself was received via certified mail, return receipt requested, by the Attorney General’s Office on July 27, 2007. [Ibid. ¶5, Exhibit C].

In the Affirmation in Opposition counsel indicates that “. . . there is an Affidavit of Service sworn to by Natalie Williams before a Notary Public, indicating that she mailed a Claim (sic) on the 13th of April, 2006 from the Bedford Hills Correctional Facility.” [Affirmation in Opposition by William F. Farrell, attorney for claimant, ¶4 (unnumbered)]. A photocopy of the envelope in which claimant mailed this second notice of intention, appended to defendant’s moving papers, is postmarked April 27, 2006. [See Affirmation in Support of Motion to Dismiss by Jeane L. Strickland Smith, Assistant Attorney General, Exhibit B]. Counsel for claimant states: “[w]hy the mail was not forwarded until the 27th of April is solely within the knowledge of the prison officials, the defendants herein.” [Affirmation in Opposition by William F. Farrell, attorney for claimant, ¶6] (unnumbered)]. Other than the affidavit of service signed by claimant, and counsel’s rhetorical statement, no further support of the contention that claimant “mailed” her notice of intention but the correctional facility did not timely forward it - such as dated and stamped disbursement request forms, for example - are included to substantiate the assertion. Moreover, service is complete when it is received in the Attorney General’s Office, not when a notice of intention or a claim is mailed. Court of Claims Act §11(a)(i).

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, by certified mail, return receipt requested, or by facsimile transmission under limited circumstances, within the time prescribed in Court of Claims Act §10, in this case within ninety (90) days of accrual. The filing and service requirements contained in §§10 and 11 of the Court of Claims Act are jurisdictional in nature and must be strictly construed. Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 (1989). Indeed, the statute provides in pertinent part “. . . [n]o judgment shall be granted in favor of any claimant unless such claimant shall have complied with the provisions of this section applicable to his claim . . . ” Court of Claims Act §10.

The claimant has the burden of establishing proper service [Boudreau v Ivanov, 154 AD2d 638, 639 (2d Dept 1989)] by a preponderance of the evidence. See Maldonado v County of Suffolk, 229 AD2d 376 (2d Dept 1996). Regulations require that proof of service of the claim be filed with the Chief Clerk within ten (10) days of service on the defendant. 22 NYCRR § 206.5(a).

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 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. In a negligence claim such as this one, it would operate to extend the period within which the actual claim must be filed to two (2) years after accrual of the claim. See Court of Claims Act §10(3). 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.

In this case, the first notice of intention served in March 2006 was served by regular mail, and therefore did not act to extend the time period within which to serve and file the claim. The second notice of intention, although served by one of the allowable methods, was not timely served in that it was received ninety-eight (98) days after accrual of the claim, and thus cannot act to extend the time period within which to serve and file a claim. Finally, the claim itself was served eighteen (18) months after its accrual, and is therefore untimely, since it was served more than ninety (90) days after accrual.

Although counsel for claimant makes references to the factors considered by a court when evaluating a motion for permission to serve and file a late claim, no cross-motion is before the court. A motion for permission to serve and file a late claim must be 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). Given a date of accrual of January 23, 2006, and presuming a negligence cause of action where the statute of limitations for other civil actions is three (3) years, claimant still has time within which to make a proper application for late claim relief. See Civil Practice Law and Rules §214. If there is, in addition, a cause of action for medical malpractice, the time period for a late claim motion with regard to same is two years and six months. See Civil Practice Law and Rules

§214-a.

Accordingly, defendant’s motion to dismiss [M-73887] is hereby granted in all respects and claim number 114007 is dismissed in its entirety.

October 23, 2007
White Plains, New York
HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims