New York State Court of Claims

New York State Court of Claims

SCHUTT v. STATE OF NEW YORK, #2007-040-045, Claim No. 113045, Motion Nos. M-73600, CM-73751


Synopsis


(1) State’s motion to dismiss is denied as untimely pursuant to Court of Claims Act § 11(c);

(2) motion to dismiss for failure to state “total sum claimed” denied because Court of Claims Act amended;

(3) State’s motion for extension of time to serve and file answer is granted;

(4) Claimant’s motion for default judgment denied;

(5) leave to serve and file an amended claim is denied as moot; and

(6) permission to serve and file a late claim pursuant to Court of Claims Act § 10(6) is granted.

Case Information

UID:
2007-040-045
Claimant(s):
MAJA SCHUTT
Claimant short name:
SCHUTT
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113045
Motion number(s):
M-73600
Cross-motion number(s):
CM-73751
Judge:
CHRISTOPHER J. McCARTHY
Claimant’s attorney:
The Law Office of Miriam C. HealyBy: Miriam C. Healy, Esq.
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New YorkBy: Kimberly A. Kinirons, Esq., AAG
Third-party defendant’s attorney:

Signature date:
September 13, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

For the reasons set forth below, the State’s motion: (1) to dismiss the Claim pursuant to CPLR 3211 is denied; and (2) for an extension of time to serve and file a Verified Answer to the Claim pursuant to CPLR §§ 2004 and 2005 is granted. Claimant’s cross-motion: (1) for a default judgment against the Defendant is denied; (2) for leave to serve and file an Amended Claim is denied; and (3) the request to serve and file a claim late pursuant to Court of Claims Act § 10(6) is granted.

The Claim alleges that Claimant was an international student at the State University of New York at Stony Brook (hereinafter SUNY Stony Brook) and that certain SUNY Stony Brook employees were negligent in assisting Claimant in completing certain forms for the United States Citizenship and Immigration Services regarding her eligibility for employment and inadequately counseling her in May 2006. As a result of the allegedly improperly completed paper, Claimant allegedly lost two employment opportunities.

The Claim was filed with the Clerk of the Court on November 27, 2006. By letter dated November 30, 2006, the Clerk of the Court notified Claimant (who was appearing pro se at that time) that the Claim was filed on November 27, 2006 subject to whatever legal objections may apply thereto. He further advised Claimant that the Claim had been assigned to the calendar of the undersigned and that if she had “not yet filed proof of service of the claim upon the defendant, please do so immediately” (see Ex. G attached to State’s motion). A copy of this notification letter was sent to the Attorney General.

Court of Claims Act § 10(3) provides that a claim to recover damages for personal injuries caused by the negligence of an employee of the State while acting as such employee, shall be filed with the Court and served upon the Attorney General within ninety days after the accrual of the claim, unless the claimant shall within such time serve upon the Attorney General a notice of intention to file a claim, in which event the claim shall be filed with the Court and served upon the Attorney General within two years after the accrual of such claim.

Section 206.7(a) of the Uniform Rules for the Court of Claims requires that responsive pleadings be served within 40 days of service of the pleading to which it responds. As no Verified Answer to the Claim had been filed in response to the Claim that was filed on November 27, 2006, this Court issued an Order to Show Cause on February 5, 2007 (hereinafter OSC) returnable on April 11, 2007. The OSC directed the parties to submit to the Court, in writing, a statement relating to service of this Claim, making reference to and including copies of any relevant documentary evidence. Claimant was told to submit affidavits establishing personal service or a copy of the certified mail, return receipt evidencing proper service by that alternative method. The Defendant was advised if it wished to assert that the Claim was not served on the Attorney General, that statement should come from someone with personal knowledge of the contents of files and records of the Department of Law (emphasis added).

In a Decision and Order dated May 8, 2007 and filed with the Clerk of the Court on June 5, 2007, the Court stated Claimant has submitted proof that, on February 7, 2007, a Claim was mailed by certified mail, return receipt requested to the Attorney General. In addition, Defendant submitted an Affidavit of Valerie Clerk, a clerk in the Claims Bureau of the New York State Department of Law, stating that, upon her thorough search of the records of the Department of Law’s Claims Bureau, she found that the Claim was received on February 9, 2007. The Court also stated that, while the Assistant Attorney General averred in her Affirmation that the Claim was not timely served in accordance with Court of Claims Act §11 and, thus, the Court lacks jurisdiction over the Claim, she did not make a formal motion to dismiss or establish the facts necessary to prevail on a motion to dismiss (see Schutt v State of New York, Claim No. 113045, Motion No. M-72913, McCarthy, J. [Ex. F attached to Affidavit of Miriam C. Healy, Esq. in support of Claimant’s cross-motion]).

By Notice of Motion dated June 18, 2007, the State now moves to dismiss the Claim, or in the alternative, for additional time to serve and file a Verified Answer.[1] In her affirmation submitted in support of the State’s motion, Assistant Attorney General Kimberly A. Kinirons avers that the Claim should be dismissed for several reasons: (1) Claimant failed to comply with Court of Claims Act § 10(3) in that the Claim was not served upon the Defendant within 90 days of accrual; (2) the Claim is jurisdictionally defective in that Claimant failed to comply with Court of Claims Act § 11(b) which requires that a claim state the time when and the place where the claim arose, the nature of the claim and the items of damage or the injuries claimed to have been sustained and the total sum claimed; (3) the Claim fails to state a valid cause of action against the Defendant; and (4) the Claim is improperly verified.

In the event the Court denies the dismissal motion, Defense counsel requests an extension of time to serve and file the Verified Answer pursuant to CPLR §§ 2004 and 2005.

In opposition to the motion to dismiss, Claimant has submitted an affidavit in which she avers:

That on or about November 30, 2006, she received from the Court of Claims a notice acknowledging receipt of her Claim, which notice provided the name of the Claim, the Claim number, the county in which the Claim accrued, the name of the assigned judge, and indicated at the bottom of the page that a copy would also be sent to the Attorney General’s office; that when she filed her Claim with the Court of Claims, she believed that the Court would serve a copy of it upon the Attorney General, because upon information and belief that is the procedure of the courts in her country (Slovenia); that after she was informed that she must serve her Claim upon the Attorney General, she did so on February 9, 2007 by certified mail, return receipt requested. Claimant further states she never received an answer or response to her Claim from Defendant in the time prescribed by law for an answer or responsive pleading.

Claimant’s counsel avers in her affidavit that Claimant’s cross-motion for a default judgment against the State should be granted because Defendant failed to appear and submit an Answer to the Claim. In the alternative, Claimant seeks permission to serve and file an Amended Claim, or permission to file a late claim pursuant to Court of Claims Act § 10(6).

Court of Claims Act § 11(c) provides: “[a]ny 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 subdivision a of this section, or (iii) with the verification requirements as set forth in subdivision b of this section and rule three thousand twenty-two of the civil practice law and rules 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”.

As stated previously, the Uniform Rules for the Court of Claims § 206.7(a) requires that service of a responsive pleading be made within 40 days of service of the pleading to which it responds. Here, the Claim was served upon Defendant on February 9, 2007, when the Attorney General received the Claim by certified mail, receipt requested (see Court of Claims Act § 11[a]). The instant motion dated June 18, 2007 was filed on June 22, and served on June 19, 2007, all more than 40 days after service of the Claim. Thus, the motion to dismiss on the grounds: (1) that the Claim was not timely served in accordance with Court of Claims Act § 10(3) ; and (2) that the Claim was not properly verified are denied as the motion is untimely pursuant to Court of Claims Act § 11(c).

The State also seeks dismissal on the grounds the Claim is jurisdictionally defective in that Claimant failed to comply with Court of Claims Act § 11(b), which requires that a claim state the time when and the place where the claim arose, the nature of the claim and the items of damage or the injuries claimed to have been sustained and the total sum claimed. Counsel asserts that the Claim fails to specify the nature of the action, the relevant dates and details, including the date of accrual, the type of relief she is seeking and the amount of monetary damages ( Kinirons Affirmation, ¶ 7).
Based upon the Court’s review of the Claim, it finds that the Claim meets the particularity requirements of Court of Claims Act § 11(b). The filed Claim alleges that it accrued at the Graduate School, Computer Science, (Office of International Students) in Stony Brook, New York; that, as a result of the negligent acts of two SUNY Stony Brook employees in May 2006 in completing paperwork required for the Citizenship and Immigration Services, Claimant lost employment opportunities. The Court finds that Claimant has complied with the particularity requirements of Court of Claims Act § 11(b) and the State’s motion to dismiss on that ground is denied. While counsel is correct that Claimant failed to set forth a total sum claimed, the Court notes that Chapter 606 of the Laws of 2007 amends Court of Claims Act § 11(b) and was approved by Governor Spitzer on August 15, 2007. As pertinent to this case, the amended § 11(b) provides that, in actions to recover damages for personal injury, the total sum claimed need not be included. The act took effect immediately and is retroactive to November 27, 2003. It provides that any claim pending on or after November 27, 2003 which would have been viable if the act was effective at the time the claim was filed shall not be dismissed for failure to state the total dollar amount of the claim. Because the Court finds this Claim would have been viable had the act been effective at the time the action was filed, the State’s motion to dismiss for failure to set forth the total sum claimed is denied.

Defendant also asserts that the Claim should be dismissed for failure to state a cause of action against it pursuant to CPLR 3211(a)(7). In considering the sufficiency of a pleading subject to such a motion the Court’s well-settled task is to determine, whether accepting as true the factual averments of the Claim, if Claimant can succeed upon any reasonable view of the facts stated (Campaign for Fiscal Equity v State of New York, 86 NY2d 307, 318 [1995]; People v New York City Tr. Auth., 59 NY2d 343, 348 [1983]). The Court is required to accord Claimant the benefit of all favorable inferences which may be drawn from her pleading, without expressing its opinion as to whether she can ultimately establish the truth of her allegations before the trier of fact (Campaign for Fiscal Equity v State of New York, 86 NY2d 307, 318, supra). As discussed above, the Court finds that Claimant has stated a properly stated cause of action sounding in negligence. Therefore, Defendant’s motion to dismiss for failure to state a cause of action is denied.

Prior to addressing the State’s request for an extension of time to serve and file a Verified Answer, the Court will address that portion of Claimant’s cross-motion seeking a default judgment. As the Court has stated above, the State has failed to timely serve and file a Verified Answer. Court of Claims Act § 12(1) provides “[i]n no case shall any liability be implied against the state. No judgment shall be granted on any claim against the state except upon such legal evidence as would establish liability against an individual or corporation in a court of law or equity”. Therefore, the Court cannot grant Claimant’s cross-motion for a default judgment.

We now return to Defendant’s motion for an extension of time to serve and file a Verified Answer pursuant to CPLR §§ 2004 and 2005. CPLR § 2004 provides that a court may extend the time fixed by any statute, rule or order for doing any act upon such terms as may be just and upon good cause shown. CPLR § 2005 provides that, upon an application satisfying the requirements of CPLR § 3012(d) or 5015, the Court shall not be precluded from exercising its discretion in the interests of justice to excuse delay or default resulting from law office failure.

Defense counsel asserts that the State’s failure to serve a Verified Answer or make a pre-answer motion to dismiss is the result of counsel’s “ mistaken belief that the Order to Show Cause was seeking information on service pursuant to the Court of Claims Act, including the jurisdictional time requirements, we responded to the Order. Believing the issue was going to be resolved by the Order, we did not submit a verified answer” (Kinirons Affirmation in Support, ¶ 13). In her affirmation submitted in response to Claimant’s cross-motion, Defense counsel again asserts that Defendant was under the belief that the Court was considering the timeliness of service (Kinirons Affirmation in Response, ¶ 2).

It has been held that when the default in answering is not willful, the defaulting party moves expeditiously for relief and the non-defaulting party is not unduly prejudiced, a Court has discretion to permit the interposition of an answer (Santos v City of New York, 269 AD2d 585 [2d Dept 2000]; Spickerman v State of New York, 85 AD2d 60 [3d Dept 1982]). The Court does have some difficulty understanding Defendant’s belief that, in deciding the OSC, the Court was considering the timeliness of service. At the time the Court signed the OSC on February 5, 2007, Defendant had not yet been served with the Claim and Defendant was not served until February 9, 2007. At the same time, the Court does not find that Defendant’s default in answering is in any way willful. Further, the Court finds that Defendant moved expeditiously for the relief – the Court’s Decision and Order regarding the OSC was filed with the Clerk of the Court on June 5, 2007 and the State filed the instant motion on June 22, 2007 – and that Claimant will not be unduly prejudiced in allowing Defendant additional time to serve and file a Verified Answer. Defendant’s motion for an extension of time to serve and file its Verified Answer is granted and Defendant may serve and file its Verified Answer to the existing Claim at any time, but no later than 20 days after service of a file-stamped copy of this Decision and Order.

As the Court has extended Defendant’s time to submit a Verified Answer, the Court will address the remainder of Claimant’s cross-motion. Claimant seeks to serve an Amended Claim or, in the alternative, permission to file a late claim pursuant to Court of Claims Act § 10(6).

The motion to serve and file an Amended Claim is denied as moot. The Court has determined above that the Claim meets the jurisdictional requirements of Court of Claims Act § 11(b). Thus, there is no need to amend the Claim. Assuming arguendo, that the Claim was untimely served upon Defendant, allowing Claimant to serve and file an Amended Claim would not cure the untimely service of the original Claim.

Finally, in the interests of judicial economy, the Court addresses Claimant’s request for permission to serve and file a late claim. If it is later determined that the original Claim was untimely served upon the Defendant and, therefore, dismissed, the Court will not then have to determine a subsequent late claim motion. The Court will consider the proposed Amended Claim (attached to the cross-motion as Ex. G) as the proposed Claim.

In determining whether to grant a motion to file a late claim, § 10(6) of the Court of Claims Act sets forth six factors that should be considered, although other factors deemed relevant also may be taken into account (Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]). Claimant need not satisfy every statutory element (see Bay Terrace Coop. Section IV v New York State Employees’ Retirement Sys. Policemen’s & Firemen’s Retirement Sys., 55 NY2d 979, 981 [1982]). However, the burden rests with Claimant to persuade the Court to grant his or her late claim motion (see Matter of Flannery v State of New York, 91 Misc 2d 797 [Ct Cl 1977]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]).

The first factor to be considered is whether the delay in filing and serving the claim was excusable. The Court finds Claimant’s proffered excuse for the delay in filing the claim – ignorance of the fact that she needed to serve the Claim upon Defendant – is not a reasonable excuse (Modern Transfer Co. v State of New York, 37 AD2d 756 [4th Dept 1971]); Fowx v State of New York, 12 Misc 3d 1184[A] [2006 NY Slip Op 51399(U)] [Ct Cl 2006]). However, the tender of a reasonable excuse for delay in filing a claim is not a precondition to permission to file a late claim such as to constitute a sine qua non for the requested relief (Bay Terrace Coop. Section IV v New York State Employees’ Retirement Sys. Policemen’s & Firemen’s Retirement Sys., supra at 981).

The next three factors to be addressed – whether Defendant had notice of the essential facts constituting the claim, whether Defendant had an opportunity to investigate the circumstances underlying the claim, and whether the failure to file or serve a timely claim or to serve a notice of intention resulted in substantial prejudice to Defendant – are interrelated and will be considered together. Defendant neither claims lack of notice, lack of opportunity to investigate, nor that it will be substantially prejudiced by a delay in filing a claim. Defendant cannot use its silence as a shield against an allegation that it had notice of the essential facts constituting the claim (Cole v State of New York, 64 AD2d 1023 [1978]). These factors, therefore, weigh in Claimant’s favor.

The fifth factor to be considered is whether Claimant has another remedy available. It appears that Claimant does not have any alternate remedy.

The sixth, final and perhaps most important factor to be considered is whether the proposed claim has the appearance of merit, for it would be futile to permit a defective claim to be filed, subject to dismissal, even if other factors tended to favor the request (Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]; Prusack v State of New York, 117 AD2d 729, 730 [2d Dept 1986]; Rosenhack v State of New York, 112 Misc 2d 967, 968 [Ct Cl 1982]; Flaherty Corp. v State of New York [New York State Parks & Recreation Div.], 102 Misc 2d 438, 440 [Ct Cl 1979]). It is Claimant’s burden to show that the claim is not patently groundless, frivolous or legally defective, and, based upon the entire record, including the proposed claim and any affidavits, that there is reasonable cause to believe that a valid cause of action exists. While this standard clearly places a heavier burden upon a party who has filed late than upon one whose claim is timely, it does not, and should not, require Claimant to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit Claimant to file a late claim (Matter of Santana v New York State Thruway Auth., supra at 11-12).

Defendant asserts that the proposed Claim lacks merit. Counsel asserts that, as an international student, it was Claimant’s responsibility to maintain compliance with immigration laws, including obtaining an Employment Authorization Card from the United States Citizenship and Immigration Service (Kinirons Affirmation in Response, ¶ 9). She also asserts that Claimant signed a Declaration of Understanding which clearly stated that such compliance was “not the responsibility of the University or its employees” (id.). Counsel further asserts that, as the Claim is for negligent academic advice, it sounds in educational malpractice and is prohibited by public policy (Kinirons Affirmation in Response, ¶ 11).

The Court has reviewed the proposed Claim and finds, contrary to the State’s arguments, that Claimant is not asserting a cause of action sounding in educational malpractice. The Court is not being asked to second guess the professional judgment of public school educators or administrators in selecting a program for Claimant or to sit in review of the day-to-day implementation of broad educational policies (see Torres v Little Flower Children’s Servs., 64 NY2d 119 [1984], rearg denied, 64 NY2d 885 [1985], cert denied, 474 US 864 [1985]; Donohue v Copiague Union Free School Dist., 64 AD2d 29, affd 47 NY2d 440). Claimant asserts that SUNY Stony Brook employees were negligent in filling out paperwork, resulting in Claimant not obtaining employment. At this stage of the proceeding, it should be noted, the Court generally takes as true factual allegations of a movant. Based upon the entire record, the Court finds that the proposed Claim has the appearance of merit. Claimant need only establish the appearance of merit; she need not prove a prima facie case at this stage of the proceedings.

In accordance with the foregoing, the Court finds that the preponderance of factors considered weigh in Claimant’s favor. The mix of circumstances presented by this case falls well within the remedial purposes of the amendments to the Court of Claims Act enacted in 1976 (Ch. 280), which was designed to vest in the Court of Claims broader discretion than previously existed to permit late filing, indicating a strong concern that litigants with meritorious claims be afforded their day in court (Calzada v State of New York, 121 AD2d 988, 989 [1st Dept 1986]; Plate v State of New York, supra). Claimant has provided ample basis for a favorable exercise of this Court’s discretion to grant her leave to file a late claim against the State. Therefore, within forty-five (45) days of the date of filing of this decision and order, Claimant shall file with the Clerk of the Court her proposed Claim against the State, and serve a copy of the proposed Claim upon the Attorney General by personal service or certified mail, return receipt requested. In serving and filing the Claim, Claimant is directed to follow all of the requirements of the Court of Claims Act, including § 11-a, regarding the filing fee, and the Uniform Rules for the Court of Claims.

September 13, 2007
Albany, New York

HON. CHRISTOPHER J. MCCARTHY
Judge of the Court of Claims


The following papers were read on the State’s motion to dismiss the Claim or, in the alternative, for an extension of time to serve and file a Verified Answer to the Claim and on Claimant’s cross-motion for a default judgment against the Defendant and, in the alternative, for leave to serve and file an Amended Claim and/or to serve and file a late claim pursuant to Court of Claims Act § 10(6):
Papers Numbered


Notice of Motion, Affirmation and
Exhibits attached 1


Notice of Cross-Motion, Affidavit of Claimant,
Affidavit of Counsel and Exhibits attached 2


Affirmation of Defense Counsel in Response
and Exhibits attached 3


Filed papers: Claim


[1].The motion was originally returnable on July 11, 2007. At Claimant’s request, the motion was adjourned to July 25, 2007.