New York State Court of Claims

New York State Court of Claims

VESPUCCI v. STATE OF NEW YORK, #2007-038-561, Claim No. 113621, Motion No. M-73514 & M-73669


Synopsis

Defendant's pre-answer motion to dismiss granted. In opposition to the motion, claimant did not demonstrate that the claim was served on the Attorney General by certified mail, return receipt requested.

Case Information

UID:
2007-038-561
Claimant(s):
AMERIGO VESPUCCI
Claimant short name:
VESPUCCI
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113621
Motion number(s):
M-73514 & M-73669
Cross-motion number(s):

Judge:
W. BROOKS DeBOW
Claimant’s attorney:
AMERIGO VESPUCCI, Pro se
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Michael T. Krenrich, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 20, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The instant claim seeks damages for injuries allegedly sustained as a result of defendant’s negligence related to medical treatment of claimant while he was incarcerated at a State correctional facility. In a pre-answer motion, defendant seeks dismissal of the claim on various jurisdictional and other grounds. Claimant, who is proceeding pro se, has submitted a response to the motion, and also moves for dismissal of affirmative defenses.[1] Defendant has not submitted opposition to claimant’s motion. A brief background discussion is warranted. In a prior decision and order, this Court granted a motion by defendant to dismiss a claim in which claimant sought damages for various acts of alleged medical negligence or malpractice (Vespucci v State of New York, UID # 2007-038-505, Claim #112571, Motion Nos. M-72230, M-72475, DeBow, J. [Feb. 16, 2007]). That decision and order also denied claimant’s motion for leave to file a late claim, without prejudice to a further motion for late claim relief that is supported by a physician’s affidavit (id.).

On April 25, 2007, claimant filed the instant claim. It refers to the prior decision of this Court, and in it, claimant asserts that it is a resubmission of the prior claim. To the extent claimant seeks to reargue or re-present the original claim, he may not do so because the prior dismissal was based upon a lack of jurisdiction due to lack of timely filing and service of the claim. Those jurisdictional defects are not cured by resubmitting the dismissed claim, and thus, to the extent the instant claim is merely a resubmission of Claim # 112571, it must be dismissed.

Court of Claims Act § 11 (a) (i) requires that if claimant serves a claim upon the Attorney General by mail, he must do so by certified mail, return receipt requested. The filing and service requirements of the Court of Claims Act must be strictly construed (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]), and the failure to effect service by certified mail, return receipt requested requires dismissal of the claim (see Turley v State of New York, 279 AD2d 819 [3d Dept 2001], lv denied 96 NY2d 708 [2001]; Philippe v State of New York, 248 AD2d 827 [3d Dept 1998]; Mitchell v State of New York, UID #2007-018-579, Claim #113572, Motion No. M-73409, Fitzpatrick, J. [Aug. 13, 2007]; Desenclos v State of New York, UID #2007-042-514, Claim #113383, Motion No. M-73161, Siegel, J. [July 23, 2007]).

Defendant’s submission demonstrates that the claim was served by ordinary first class mail, as the envelope in which the claim was received bears no indicia that it was mailed by certified mail, return receipt requested (Krenrich Affirmation, Exhibit A). In two separate submissions to the Court, claimant has produced two affidavits of service which purport to demonstrate service of this claim upon the Attorney General by certified mail. The first affidavit of service, sworn to on May 15, 2007, states that this claim was served upon the Attorney General by certified mail on April 16, 2007, four days before the instant claim was verified by claimant.[2] The claim could not possibly have been served prior to the date on which it was verified, and thus, the Court discredits the May 15, 2007 affidavit of service. In explicit opposition to defendant’s motion, claimant has submitted a second affidavit of service, sworn to on June 15, 2007, indicating that he mailed a claim to the Attorney General by certified mail on April 25, 2007. This affidavit of service does not state that it pertains to this claim, and thus, the June 15, 2007 affidavit of service has no probative value with respect to service of this claim upon the Attorney General. In sum, claimant’s submissions do not demonstrate that the claim was served in compliance with Court of Claims Act § 11 (a), and the claim must be dismissed.

Moreover, even if the claim had been properly served, it is still jurisdictionally defective because it does not state the claim in sufficient detail to allow the State to conduct an adequate investigation (see Lepkowski v State of New York, 1 NY3d 201, 207 [2003]). Specifically, it does not state “the time when and place where [the] claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained” (Court of Claims Act § 11 [b]; see Lepkowski v State of New York, supra).

Accordingly, and for all of the reasons stated above, it is

ORDERED, that Motion No. M-73514 is GRANTED, and Claim #113621 is dismissed, and it is further

ORDERED, that Motion No. M-73669 is DENIED as moot.

September 20, 2007
Albany, New York

HON. W. BROOKS DEBOW
Judge of the Court of Claims



Papers considered
:

(1) Claim #113621, filed April 25, 2007;

(2) Notice of Motion (M-73514), dated June 4, 2007;

(3) Affirmation of Michael T. Krenrich, AAG, with exhibits A-B;

(4) Correspondence of Amerigo Vespucci, dated June 10, 2007;

(5) Affidavit of Service of the Claim, sworn to June 15, 2007;

(6) Notice of Motion to Dismiss Defense (M-73669), filed June 21, 2007;

(7) Affidavit in Support of Motion to Strike Affirmative Defense, sworn to June 15, 2007;

(8) Affidavit in Support of Motion to Dismiss Defense, sworn to June 15, 2007;

(9) Affidavit of Service of Amerigo Vespucci, sworn to June 15, 2007;

(10) Affidavit of Service of the Claim, sworn to May 15, 2007, with appended documents.

[1]. The records of the Clerk of the Court of Claims indicate that defendant has not filed an answer to the claim. Thus, the source of the affirmative defenses that are addressed by claimant’s motion is not clear.
[2]. Curiously, the certified mail receipts attached to the affidavit of service confirm that the Attorney General received the certified mail on April 16, 2007.