New York State Court of Claims

New York State Court of Claims

THOMAS v. THE STATE OF NEW YORK, #2007-030-583, Claim No. 113034, Motion Nos. M-74057, CM-74189


Defendant’s cross motion to dismiss pro se inmate’s claim alleging failure to timely provide prescribed asthma medication granted. Claim was not served on the Attorney General’s office at all, resulting in a lack of subject matter jurisdiction.

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):
Claimant’s attorney:
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
December 14, 2007
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on claimant’s motion to amend his claim

and on defendant’s cross-motion to dismiss the claim:

1,2 Notice of Motion; Affidavit by Christopher Thomas, Claimant

3,4 Notice of Cross-Motion; Affirmation in Support of Cross-Motion to Dismiss by Barry Kaufman, Assistant Attorney General, and attached exhibits

  1. Claimant’s Reply by Christopher Thomas, and attachments
  1. Filed Paper: Claim
Christopher Thomas alleges in his claim that defendant’s agents at Green Haven Correctional Facility denied him his asthma medication on June 28, 2006 and as a result he suffered an asthma attack, and was rushed to the facility clinic. He states that his medical conditions were well documented in the medical records, yet the treating physician at Green Haven refused to treat his medical needs.

Claim number 113034 was filed in the Office of the Chief Clerk of the Court of Claims on November 20, 2006. On the claim form, a date of accrual of “June 30” is stated without a year indicated. The claim form also indicates that a notice of intention to file a claim was served on September 8, 2006. An affidavit of service appended to the claim provides that the claim itself was served by certified mail, return receipt requested on November 10, 2006, but does not say upon what entity it was served. No Answer has been served or filed.
This motion is addressed first because it is dispositive. Court of Claims Act §11(a) provides that the claim must be served personally or by certified mail, return receipt requested, upon the attorney general within the times prescribed in Court of Claims Act §10; and that service is complete when it is received in the Attorney General’s Office. Court of Claims Act §11(a)(i). A failure to serve the claim as required results in a lack of jurisdiction, unless the State has failed to properly plead jurisdictional defenses or raise them by motion. In that case, the defense is waived. Court of Claims Act §11(c).[1] Failure to serve the claim at all results in a lack of subject matter jurisdiction that is not waiveable. 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 be filed with the Chief Clerk within ten (10) days of service on the defendant. 22 NYCRR § 206.5(a).

The defendant indicates that no notice of intention and no claim was ever served upon the Attorney General’s Office as required. An affidavit from Valerie Clerk, the record-keeper in the claims bureau of the Attorney General’s Office, attests that despite a search of the computer mail records of that office containing information State-wide, and inquiries to the branch offices in Albany, Dutchess, Suffolk and Westchester counties, as well as the New York City branch, there is no record of any documents related to this claim except a letter from the court indicating that a claim was filed in the court, and the present motion papers. [Affirmation by Barry Kaufman, Assistant Attorney General, Exhibits 1 and 2].

In Reply papers, claimant indicates that the defendant has been served at this point because when he served the motion papers to amend or supplement his claim, he included the claim and notice of intention he had filed with the court in 2006. [Claimant’s Reply, ¶¶ 2, 3 and 4]. He asks the court to consider these papers as his claim. [Ibid.]. This does not address, however, the controlling issue that the claim was not served within ninety (90) days of its accrual by the required means. Claimant makes further arguments that might be appropriate for late claim relief under Court of Claims Act §10(6).

In order to determine an application for permission to serve and file a late claim, the Court must consider, “among other factors,” the six factors set forth in §10(6) of the Court of Claims Act. The factors stated therein are: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears meritorious; (5) whether substantial prejudice resulted from the failure to timely serve upon the Attorney General a claim or notice of intention to file a claim, and the failure to timely file the claim with the Court of Claims; and (6) whether any other remedy is available. Claimant does not, however, address the factors herein thus the court is constrained from interpreting the papers submitted as making an application for late claim relief sua sponte.[2]

As noted above, no answer was filed in the Office of the Chief Clerk of the Court of Claims. This has been found to be indicative of a failure to serve the claim on the defendant as required to establish jurisdiction.

Here, the Claimant has not been able to establish that he served the claim upon the Attorney General as required, and the Defendant has raised the jurisdictional issue in a timely motion. Thus Claimant has failed to establish, by a fair preponderance of the credible evidence, that the Attorney General was served with a copy of the claim as required by Court of Claims Act §11(a).

A pleading in the Court of Claims may be amended or supplemented in accordance with the provisions of Civil Practice Law and Rules § 3025(b). See 22 NYCRR § 206.7 (b). Although leave to amend should be freely given, the determination is left to the sound discretion of the Court. The Court should consider whether there would be any prejudice to the opposing party; any effect an amendment would have on the orderly prosecution of the action; whether the moving party unduly delayed in seeking to add the new allegations; and whether the proposed amendment is palpably improper or insufficient as a matter of law. Where the proposed amendment lacks merit as a matter of law, or where amendment would be immaterial, among other things, the Court should deny leave based upon such legal insufficiency. A copy of the proposed amended Claim should generally be included, as well as any factual affidavits or exhibits that “. . . unequivocally make out a prima facie basis for the claim . . . or other matter now sought to be added . . . ” [Siegel, Practice Commentaries C3025:11; Civil Practice Law and Rules § 3025].

In addition to the dismissal of the claim having rendered the present application moot, no proposed amendment is included requiring denial of the motion in any event.

Accordingly, Claimant’s motion [M-74057] is in all respects denied; Defendant’s cross-motion [CM-74189] is hereby granted, and Claim number 113034 is hereby dismissed in its entirety.

December 14, 2007
White Plains, New York

Judge of the Court of Claims

[1]. “Any objection or defense based upon failure to comply with (i) the time limitations contained in section 10 of this act, (ii) the manner of service requirements set forth in . . . [11(a)], or (iii) with the verification requirements as set forth in . . . [11(b)] and . . . [Civil Practice Law and Rules 3022] is waived unless raised, with particularity, either by a motion to dismiss made before service of the responsive pleading is required or in the responsive pleading, and if so waived the court shall not dismiss the claim for such failure.”
[2].The court notes that any motion for late claim relief 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, if it is medical malpractice at issue, the applicable statute of limitations is two and one-half (2 ½ ) years from the date of accrual. Civil Practice Law and Rules §214-a . If a negligence cause of action is asserted - i.e.: if ministerial indifference is alleged - a three (3) year statute of limitations would expire in June 2009. Civil Practice Law and Rules §214.