New York State Court of Claims

New York State Court of Claims

ELLERBE v. THE STATE OF NEW YORK, #2007-037-047, Claim No. 113775, Motion Nos. M-73702, CM-73817


Synopsis


Case Information

UID:
2007-037-047
Claimant(s):
JERRIDON ELLERBE, 05-R-4373
Claimant short name:
ELLERBE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113775
Motion number(s):
M-73702
Cross-motion number(s):
CM-73817
Judge:
JEREMIAH J. MORIARTY III
Claimant’s attorney:
Jerridon Ellerbe, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo
New York State Attorney General
By: Gregory P. Miller, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 23, 2007
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following were read and considered with respect to Defendant’s motion to dismiss (M-73702) and Claimant’s cross-motion for leave to file and serve a late claim (CM-73817):
1. Defendant’s notice of motion to dismiss (M-73702) and supporting affirmation of

Assistant Attorney General Gregory P. Miller dated July 5, 2007, with annexed Exhibits A-C;

2. Claimant’s notice of cross-motion to late file (CM-73817), Claimant’s affidavit in

opposition to Defendant’s motion to dismiss sworn to July 31, 2007, and Claimant’s separate affidavit in support of cross-motion to late file sworn to July 31, 2007, with annexed Exhibits A-D.

3. Opposing affirmation of Assistant Attorney General Gregory P. Miller dated October

5, 2007, with annexed Exhibit A.


Filed papers: Claim filed May 31, 2007.

This is an action for personal injuries arising out of an incident which occurred on December 17, 2006 when the pro se Claimant, an inmate at Lakeview Shock Incarceration Correctional Facility (Lakeview), was assaulted by his cell mate due to the alleged negligence of employees of the Department of Correctional Services (DOCS) who allegedly ignored Claimant’s prior complaints that his cell mate was “challenging” him and his prior requests to be moved to a different cell. Defendant moves to dismiss the claim because it was not timely filed and served. Claimant opposes the motion and cross-moves for leave to file and serve a late claim. The motion and cross-motion will be addressed separately.

Defendant’s Motion to Dismiss (M-73702)

Pursuant to § 10 (3) of the Court of Claims Act, a negligence claim against the State of New York must be filed and served within 90 days of accrual unless the Claimant serves upon the Attorney General within the same 90-day period a notice of intention to file a claim, in which event the claim shall be filed and served within two years of the accrual of the claim. The claim accrued on December 17, 2006 when the Claimant was allegedly assaulted by his cell mate at Lakeview. The claim was filed on May 31, 2007 and served upon the Attorney General on May 29, 2007, more than 90 days after the claim accrued. The filing and service requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Finnerty v New York State Thruway Authority, 75 NY2d 721 [1989]). Thus, the claim would have to be dismissed unless the filing and service requirements of the Court of Claims Act were effectively extended by the timely and proper service upon the Attorney General of a notice of intention to file a claim.

Pursuant to § 11 (a) of the Court of Claims Act, both a notice of intention and a claim must be served personally or by certified mail, return receipt requested. While the claim was served properly, it is not disputed that the notice of intention was served by regular mail. Because the notice of intention was served by an unauthorized method of service, it is invalid and Claimant is not entitled to the two-year extension of time to file and serve a claim allowed by Court of Claims Act § 10 (3). Accordingly, the claim filed and served more than 90 days after accrual of the claim is untimely and must be dismissed (Turley v State of New York, 279 AD2d 819 [2001]; Philippe v State of New York, 248 AD2d 827 [1998]).

Claimant argues that service of the notice of intention by regular mail did not deprive the Court of subject matter jurisdiction and cites Thomas v State of New York, 144 AD2d 882 (1988). In Thomas, the Third Department held that the trial court did not err in refusing to dismiss a claim served by regular mail as the Defendant had waived its objection to jurisdiction by failing to raise it in its answer. Pursuant to § 11 (c) of the Court of Claims Act, an objection to the time limitations of the Court of Claims Act and to its manner of service requirements are waived if not raised either by a motion to dismiss made before service of a responsive pleading is required or in the responsive pleading. Here, Defendant moved to dismiss the claim before its answer to the claim was due and, therefore, did not waive its right to object to the timeliness or manner of service. Accordingly, nothing in the Thomas decision supports Claimant’s position and claim number 113775 must be and is hereby dismissed.

Claimant’s Cross-Motion to Late File a Claim
(CM-73817)

Pursuant to § 10 (6) of the Court of Claims Act, a motion for permission to late file and serve a claim must be brought within the period of time when “a like claim against a citizen of the state” would not be precluded by the applicable CPLR Article 2 statute of limitations. Under CPLR § 214, a negligence claim must be commenced within three years of accrual of the claim. Because the cross-motion herein was brought within three years of December 17, 2006, the date of the alleged assault, it is timely.

Court of Claims Act § 10 (6) grants the Court discretion to permit the late filing of a claim upon consideration of many factors including: 1) whether the delay in filing and serving 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 to be meritorious; 5) whether substantial prejudice to the State resulted from the failure to timely serve a claim upon the Attorney General; and 6) whether any other remedy is available. This list is not exhaustive and the presence or absence of any one factor is not dispositive. Rather, the Court is afforded considerable discretion in determining whether to permit the late filing of a claim (Bay Terrace Coop. Section IV v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, 55 NY2d 979 [1982]; Ledet v State of New York, 207 AD2d 965 [1994]).

The first factor to be considered by the Court is whether the delay in filing and serving a claim was excusable. Claimant argues that the delay was excusable because he relied on an allegedly deceptive document with respect to service of a notice of intention to file a claim. This document entitled “Frequently Asked Questions” states in pertinent part:
“Generally, service (by an authorized method) of a Notice of Intention within the time period provided for filing a Claim extends the deadline for serving and filing a claim as follows: ...”

Claimant argues that the word “generally” in this document is misleading as it implies that another method of service (i.e. regular mail) would be acceptable. Contrary to this argument, the word generally in the quoted sentence does not modify the parenthetical phrase. Claimant would have a better argument if the parentheses were removed. In any event, the placement of the parenthetical phrase after the word service clearly indicates that service of a notice of intention must be by an authorized method. If Claimant was unsure as to what constituted an authorized method of service, it was incumbent upon him to review the Court of Claims Act. Because ignorance of the law is not a reasonable excuse for the failure to timely file and serve a claim (Matter of Sandlin v State of New York, 294 AD2d 723 [2002], lv dismissed 99 NY2d 589 [2003]), this factor weighs against Claimant’s cross-motion.

The three factors of notice, opportunity to investigate and prejudice are intertwined and may be considered together (Brewer v State of New York, 176 Misc 2d 337 [1998]). Defendant concedes that it received timely notice of the underlying facts, had an opportunity to investigate, and will not be prejudiced because of the misbehavior report regarding the alleged altercation and the improperly served notice of intention. These factors, together with the lack of an alternative remedy, all weigh in favor of granting Claimant’s cross-motion.

The next and often considered the most decisive factor is merit as it would be futile to allow a meritless claim to proceed (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [1977]). Claimant must demonstrate that the proposed claim is not “patently groundless, frivolous, or legally defective” and that there is reasonable cause to believe that a valid cause of action exists (id. at 11).

The State has a duty to protect inmates from attacks by fellow inmates (Sanchez v State of New York, 99 NY2d 247 [2002]). The scope of this duty is limited to risks of harm that are reasonably foreseeable (id. at 253, 255). Here, Claimant alleges that on three occasions prior to the alleged assault he requested a cell change because his cell mate was challenging him. These facts as sworn to by Claimant in his improperly served notice of intention and untimely served claim are sufficient to at least allege a negligence cause of action which is neither patently groundless nor frivolous (see Rodriguez v State of New York, Ct Cl, May 15, 2007, Collins, J., claim no. none, motion no. M-72995, UID # 2007-015-189).[1] This factor weighs in favor of granting Claimant’s cross-motion.

On balance, the Court concludes that the statutory factors favor Claimant’s cross-motion and that it would be a proper exercise of its discretion to allow Claimant to file and serve a late claim. Accordingly, it is hereby

ORDERED, that Defendant’s motion M-73702 is granted and claim no. 113775 is dismissed; and it is further

ORDERED, that Claimant’s cross-motion CM-73817 is granted and a new claim may be filed and served in accordance with the requirements of §§ 10, 11 and 11-a of the Court of Claims Act within forty-five (45) days of the filing of this decision and order.




October 23, 2007
Buffalo, New York

HON. JEREMIAH J. MORIARTY III
Judge of the Court of Claims




[1]. This and other unreported Court of Claims decisions may be found on the Court’s web site at www.nyscourtofclaims.state.ny.us.