New York State Court of Claims

New York State Court of Claims

ROBINSON v. THE STATE OF NEW YORK, #2007-030-585, Claim No. 114354, Motion No. M-74268


Synopsis


Defendant’s pre-answer motion to dismiss granted, in claim alleging assault by a correction officer. The NI was not timely served although served certified mail, return receipt requested; the claim itself was both untimely and not served by proper means. No personal jurisdiction.

Case Information

UID:
2007-030-585
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):
114354
Motion number(s):
M-74268
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 20, 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-74268]:

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

  1. Filed papers: Claim
No Opposition filed


Latee Robinson alleges in claim number 114354 that on April 24, 2007 a correction officer at Green Haven Correctional Facility, where claimant was incarcerated, physically assaulted him and verbally abused him near the medical unit. He alleges that his hand was broken as a result.

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 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]. 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].

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, it did not operate to extend the time within which the claim could be served and filed.

A failure to serve the claim as required results in a lack of personal jurisdiction,[2] 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). The applicable portion of the statute provides:
“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.”

Here the claim was served by regular mail on October 19, 2007 more than ninety (90) days after the claim accrued on April 24, 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). The affidavit of service filed with regard to this claim indicates only that the claim was mailed, but not when or by what means.

Accordingly, since the jurisdictional issue has been raised in a timely motion, defendant’s motion to dismiss is in all respects granted, and Claim number 114354 is hereby DISMISSED in its entirety.

December 20, 2007
White Plains, New York

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




[2]. Whereas a failure to comply with the required manner and timeliness of service constitute waiveable defects in personal jurisdiction [see Court of Claims Act §11(c)], a failure to serve a claim at all results in a lack of non-waiveable, subject matter jurisdiction. See Scriven v State of New York, UID # 2007-029-048, Claim No. 109689, Motion No. M-74213 (Mignano, J., November 30, 2007) citing Dreger v New York State Thruway Auth, 81 NY2d 721 (1992).