New York State Court of Claims

New York State Court of Claims

ROBINSON v. THE STATE OF NEW YORK, #2007-030-584, Claim No. 114355, Motion No. M-74270


Synopsis


Defendant’s pre-answer motion to dismiss granted, in claim alleging assault by correction officer using mechanical restraints. NI not timely served. Claim itself not timely served and not served by the proper means. No personal jurisdiction.

Case Information

UID:
2007-030-584
Claimant(s):
LATEE ROBINSON
1 1.The caption has been amended to reflect the only proper defendant.
Claimant short name:
ROBINSON
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):
114355
Motion number(s):
M-74270
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
LATEE ROBINSON, PRO SE
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:
December 21, 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 [M- 74270]:

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

  1. Filed papers: Claim
No Opposition filed


Latee Robinson alleges in claim number 114355 that on May 10, 2007 a correction officer at Green Haven Correctional Facility, where claimant was incarcerated, assaulted him when applying mechanical restraints in the waiting area of the disciplinary hearing office. The claim asserts that a Notice of Intention to File a Claim was served on August 23, 2007. [Claim Number 114355]. The affidavit of service indicates that the claim was placed in the facility mailbox on some unspecified date for mailing to this court and to the Attorney General’s Office, does not specify what type of mail service was used, and is notarized on October 9, 2007. [See ibid.].

In this pre-answer motion to dismiss, defendant moves to dismiss based upon the claimant’s failure to timely serve a Notice of Intention to File a Claim, and upon claimant’s subsequent failure to timely and properly serve the claim itself. [Affirmation in Support of Motion to Dismiss by Jeane L. Strickland Smith, Assistant Attorney General, Exhibits 1 and 2]. With regard to the Notice of Intention, although it was properly served by certified mail, return receipt requested it was served on September 6, 2007[2] and was therefore not timely, since it was served more than ninety (90) days after the claim’s accrual. [See Court of Claims Act §10; Affirmation in Support of Motion to Dismiss by Jeane L. Strickland Smith, Assistant Attorney General, Exhibit 1]. Counsel states that the claim itself was then served by regular mail on October 19, 2007, and was therefore both untimely and not served by the proper means. [Court of Claims Act §§10 and 11; Affirmation in Support of Motion to Dismiss by Jeane L. Strickland Smith, Assistant Attorney General, Exhibit 2].

Counsel also indicates that the allegations contained in the claim are different than those contained in the notice of intention to file a claim. [Ibid. ¶4]. The court notes that the claim appended to the defendant’s motion papers is not the same as the filed claim given claim number 114355 by the Clerk’s office. The court cannot help but note that in correspondence from the Chief Clerk’s office to the claimant there is reference to four (4) different claims, numbered 114354, 114355, 114356 and 114357[3] all apparently filed by this claimant. If same were all served in some fashion on the Office of the Attorney General, both the similarity in the numbers and in the contents of the claims might tend to confuse.[4]

Despite this confusion, claimant has not come forward on this motion with opposition to show that the claim filed in the office of the Chief Clerk of the Court of Claims was either timely or properly served, in the face of defendant’s having raised the jurisdictional issue. Moreover, the claim filed in the office of the Chief Clerk does not appear to have been timely and properly served in any event, since a date of accrual of May 10, 2007 is alleged, the affidavit of service does not say by what means or when the claim was served and, given that the claim was filed in the Clerk’s office on October 15, 2007, and the notarization of the affidavit indicating mailing of the claim to the Clerk of the Court and to the Attorney General is dated October 9, 2007, the inference can be drawn that it was served upon the Attorney General’s Office sometime in October 2007, by regular mail.

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, within the time prescribed in Court of Claims Act §10. Service is complete when the documents are received in the Attorney General’s Office. Court of Claims Act §11(a)(i). Court of Claims Act §10(3-b) - referring to intentional torts - requires service within ninety (90) days of accrual of the claim, as does Court of Claims Act §10(3), referring to claims of negligence. If a notice of intention has been properly served, with regard to intentional torts it allows service of the claim within one (1) year of accrual, and with regard to causes of action sounding in negligence, a claim may be served within two (2) years of accrual. 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 timely and properly served and contains the required information.

Since the notice of intention was not served within ninety (90) days of the claim’s accrual on May 10, 2007 it did not operate to extend the time within which the claim could be served and filed. Affirmation in Support of Motion to Dismiss by Jeane L. Strickland Smith, Assistant Attorney General, Exhibit 1].

A failure to serve the claim as required results in a lack of personal 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).[5]

Here the proof shown in the Court’s file is that the claim was served by regular mail in October 2007 more than ninety (90) days after the claim accrued on May 10, 2007. Claimant has not offered any opposition to the motion to show that the Notice of Intention was timely served, or that the claim itself was timely served by the proper means. 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). Indeed, 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). As noted, the affidavit of service filed with regard to this claim is not informative as to when or how the claim was mailed.

Accordingly, since the jurisdictional issue has been raised in a timely motion, defendant’s motion to dismiss [M-74270] is in all respects granted, and Claim number 114355 is hereby DISMISSED in its entirety.

December 21, 2007
White Plains, New York

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




[2].It is noted that the claim avers that a notice of intention was served on August 23, 2007. This assertion in the claim is not borne out, since the pertinent notice of intention was received by the Attorney General’s Office on September 6, 2007, and that is when service is complete. Court of Claims Act §11(a)(i).
[3].Apparently the letter from the clerk’s office incorrectly listed claim 114357.
[4].Indeed this court recently had motion practice [M-74268] concerning claim number 114354, involving an incident on April 24, 2007.

[5]. “Any objection or defense based upon failure to comply with (i) the time limitations contained in section ten 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.”