New York State Court of Claims

New York State Court of Claims

CLAY v. THE STATE OF NEW YORK, #2007-041-053, Claim No. 114123, Motion Nos. M-73944, CM-74067


Synopsis


Claim is dismissed for failure to properly serve Attorney General with notice of intention and application to file late claim is denied where proposed claim lacks merit and claimant offers no reasonable excuse for delay.

Case Information

UID:
2007-041-053
Claimant(s):
DANIEL CLAY
Claimant short name:
CLAY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114123
Motion number(s):
M-73944
Cross-motion number(s):
CM-74067
Judge:
FRANK P. MILANO
Claimant’s attorney:
DANIEL CLAYPro Se
Defendant’s attorney:
HON. ANDREW M. CUOMO
New York State Attorney GeneralBy: Belinda A. Wagner, Esq., Assistant Attorney General
Third-party defendant’s attorney:

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

Official citation:

Appellate results:

See also (multicaptioned case)


Decision


Defendant moves to dismiss the claim on the ground that the underlying notice of intention to file claim was not properly served on the Attorney General and the claim was therefore not timely served and filed with the Clerk of the Court of Claims, as required by Court of Claims Act §§ 10 (3) and 11 (a). Claimant cross-moves for permission to file a late claim pursuant to Court of Claims Act § 10 (6). The motion to dismiss is granted and the application to file a late claim is denied. Claimant is an inmate at Clinton Correctional Facility (Clinton). The claim alleges that on January 16, 2006, claimant was “fired from my assigned Industry Program without just cause.” Claimant alleges that the loss of income from his paid position in the Clinton industrial program caused him “emotional distress because they stopped me from buying my son a birthday present. I felt really bad that I was not able to buy my son a present for his birthday.” Claimant also claims damages of $302.78 for income he would have received if his program participation had not been terminated.

The claim asserts that the “claim is for the negligence of the State for the failure of its employees . . . to follow Department of Correctional Services and Industry rules and regulations” in terminating claimant’s assignment in the Clinton industrial program. Claimant filed an Inmate Grievance Complaint (grievance) on February 17, 2006, regarding his termination, arguing that his removal from the industrial program was “arbitrary, capricious and unfair.” According to the grievance, claimant was terminated from the industrial program for “too many call-outs.” The grievance was denied by the facility superintendent on March 13, 2006 and the denial was upheld by the Central Office Review Committee (CORC) on April 26, 2006. Claimant alleges in his notice of intention to file a claim that he received the CORC determination on May 8, 2006.

The notice of intention was received by the Attorney General on August 4, 2006. The Attorney General asserts, without contradiction by claimant, that the notice of intention was served by regular mail rather than certified mail, return receipt requested, as required by Court of Claims Act § 11 (a). The claim was served on the Attorney General on August 9, 2007 and the claim was filed on August 22, 2007.

Although the claim alleges an accrual date of May 8, 2006 (the date claimant received the CORC determination), the Court finds that the claim accrued on January 16, 2006, the date claimant was terminated from the industrial program. “A cause of action accrues upon the occurrence of all events essential to the claim such that the [claimant] would be entitled to judicial relief” (Utica Mut. Ins. Co. v Avery, 261 AD2d 802, 803 [3d Dept 1999], lv denied 93 NY2d 818 [1999]). In particular, “a claim accrues for purposes of the Court of Claims Act when damages are reasonably ascertainable” (Augat v State of New York, 244 AD2d 835, 836 [3d Dept 1997]; lv denied 91 NY2d 814 [1998]). Claimant’s damages were reasonably ascertainable upon his termination and he was under no legal obligation to pursue a grievance prior to serving a notice of intention to file a claim in the Court of Claims.

Court of Claims Act § 10 (3) requires that:
“A claim to recover damages for injuries to property or for personal injuries caused by the negligence or unintentional tort of an officer or employee of the state while acting as such officer or employee, shall be filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after the accrual of such claim.”
Courts have consistently held that “[a]s a condition of the State’s limited waiver of sovereign immunity, those requirements [timely filing and service] are strictly construed and a failure to comply therewith is a jurisdictional defect compelling the dismissal of the claim” (Welch v State of New York, 286 AD2d 496, 497-498 [2d Dept 2001]; see Robinson v State of New York, 38 AD3d 1030 [3d Dept 2007]; Pizarro v State of New York, 19 AD3d 891, 892 [3d Dept 2005], lv denied 5 NY3d 717 [2005]).

The notice of intention was not served within ninety days of accrual of the claim as required by Court of Claims Act § 10 (3) and was not served by certified mail, return receipt requested, as required by Court of Claims Act § 11 (a). The notice of intention thus did not afford claimant two years (rather than ninety days) from accrual of the cause of action to serve and file the claim.

The claimant has failed to timely file and serve the claim and the claim is therefore dismissed.

Court of Claims Act § 10 (6) provides that the Court, upon application and in its discretion, may permit the late filing and service of a claim “at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules.” Claimant’s cause of action sounding in negligence is not time-barred by CPLR Article 2.

In determining the application, Court of Claims Act § 10 (6) provides that:
“[T]he court shall consider, among other factors, whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy.”
In reviewing a late claim application, “the Court of Claims is required to consider, among other factors, those enumerated in Court of Claims Act § 10 (6), no one factor being controlling” (Matter of Donaldson v State of New York, 167 AD2d 805, 806 [3d Dept 1990]; see Matter of Duffy v State of New York, 264 AD2d 911, 912 [3d Dept 1999]). In fact, “[n]othing in the statute makes the presence or absence of any one factor determinative” (Bay Terrace Coop. Section IV, Inc. v New York State Employees’ Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979, 981 [1982]).

Further, “it is well settled that the Court of Claims’ broad discretion in this area should be disturbed only in the face of clear abuse” (Calco v State of New York, 165 AD2d 117, 119 [3d Dept 1991], lv denied 78 NY2d 852 [1991]).

Claimant fails to offer a reasonable excuse for the delay in filing the claim, stating only that “[i]t would not have been sensible for me to put in a Claim until I received an answer to the grievance.” Claimant’s vague assertion that he “had problems in the past with the New York City Department of Corrections reluctance in sending out my Certified Mail because I did not have the monies to cover the charges” is insufficient to explain why he was unable to serve a timely notice of intention by certified mail, return receipt requested, during the pendency of his grievance. Claimant offers no proof that he attempted to send this particular notice of intention to defendant by certified mail, return receipt requested, and was thwarted by an act or omission of the New York State Department of Correctional Services.

The defendant does not dispute that it had timely “notice of the essential facts constituting the claim” and “an opportunity to investigate the circumstances underlying the claim.” The defendant does not allege that it would suffer any prejudice were the late claim application to be granted.

Claimant had an available alternative remedy which he apparently chose not to pursue: An Article 78 proceeding to annul the administrative determination which resulted in the loss of his facility employment. The fact that an alternative remedy existed weighs against granting claimant’s application.

Section 10 (6) requires that the proposed claim not be “patently groundless, frivolous or legally defective, and [that] upon consideration of the entire record, there is cause to believe that a valid cause of action exists” (Rizzo v State of New York, 2 Misc 3d 829, 833-834 [Ct Cl 2003]; see Dippolito v State of New York, 192 Misc 2d 395 [Ct Cl 2002]; Remley v State of New York, 174 Misc 2d 523 [Ct Cl 1997]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]).

The proposed claim lacks merit because the Court lacks subject matter jurisdiction over this type of claim. Despite claimant’s characterization of the claim as negligence, it is apparent that what claimant really seeks is judicial review of the administrative determination which ended his participation in the industrial program. In order to award claimant a money judgment for wages he would have earned had his participation in the program not been terminated, the Court would necessarily have to annul the CORC determination. That relief can only be granted in an Article 78 proceeding (Ouziel v State of New York, 174 Misc 2d 900, 906 [Ct Cl 1997]).
The Court of Claims is a court of limited jurisdiction and the powers conferred upon it do not include the authority to provide the type of equitable relief requested by claimant (Madura v State of New York, 12 AD3d 759 [3d Dept 2004], lv denied 4 NY3d 704 [2005]). The jurisdiction of the Court of Claims is invoked where money damages are the essential object of the claim, unlike an instance where the principal claim is equitable in nature (such as to annul an allegedly incorrect agency determination), with monetary relief being incidental to the principal claim (see Harvard Fin. Servs. v State of New York, 266 AD2d 685, 685 [3d Dept 1999]; Matter of Gross v Perales, 72 NY2d 231, 236 [1988]).

Based upon a balancing of the factors set forth in section 10 (6) and recognizing that “it would be futile to permit a defective claim to be filed even if the other factors . . . supported the granting of the claimant’s motion” (Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]), the application to file a late claim is denied.


November 13, 2007
Albany, New York

HON. FRANK P. MILANO
Judge of the Court of Claims


Papers Considered:

  1. Notice of Motion, filed September 10, 2007;
  2. Affirmation of Belinda A. Wagner, dated September 7, 2007, and annexed exhibits.
  3. Reply to Notice of Motion and Special Motion of Daniel Clay, filed October 1, 2007;
  4. Reply Affirmation of Belinda A. Wagner, dated October 9, 2007
  5. Verified Claim, filed August 22, 2007.