New York State Court of Claims

New York State Court of Claims

RODRIGUEZ v. THE STATE OF NEW YORK, #2007-041-055, Claim No. 111465, Motion No. M-74161


Synopsis


Motion to dismiss claim as untimely is granted where filing and service of claim was governed by ninety day period applicable to a negligence or unintentional tort claim as set forth in Court of Claims Act § 10 (3) rather than the six month period prescribed by § 10 (4) for a “claim not otherwise provided for by this section.”


Case Information

UID:
2007-041-055
Claimant(s):
ESTHER RODRIGUEZ, PUBLIC ADMINISTRATOR OF BRONX COUNTY, AS ADMINISTRATRIX OF THE ESTATE OF THE DECEASED LUIS ANGEL MALDONADO
Claimant short name:
RODRIGUEZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111465
Motion number(s):
M-74161
Cross-motion number(s):

Judge:
FRANK P. MILANO
Claimant’s attorney:
JOSEPH J. TEJEIRO, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO
New York State Attorney GeneralBy: Dennis M. Acton, Esq., Assistant Attorney General
Third-party defendant’s attorney:

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

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Defendant moves to dismiss the claim on the ground that the Court lacks jurisdiction because the claim was not timely filed and served. In particular, defendant argues that the claim alleges negligence and is thus governed by the requirement that filing and service of the claim be effected within ninety days of claim accrual, as provided by Court of Claims Act § 10 (3), rather than the six month filing and service period prescribed by § 10 (4) for a “claim not otherwise provided for by this section,” as claimant suggests. The claim alleges that decedent Luis Angel Maldonado was killed by Mark Garraway, that Garraway was thereafter convicted of murder and that he is presently incarcerated at Green Haven Correctional Facility. It further alleges that the decedent’s brother (Serrano) was notified sometime thereafter by the New York State Crime Victims Board (Crime Victims Board) that Garraway was to receive a payment of $35,000.00 from the Office of the New York State Comptroller (Comptroller) to be deposited into Garraway’s inmate account.

The claim alleges that the Crime Victims Board, on behalf of Serrano as a representative of a crime victim, obtained an Order to Show Cause signed by Albany Supreme Court Justice Bernard J. Malone, Jr., bearing Index No. 3633-03. The Order to Show Cause contained a temporary restraining order with respect to all funds deposited in or credited to Garraway’s inmate account.

Claimant contends that the claim accrued on October 7, 2003 when “it was determined that the funds which were sought to be frozen were never deposited in the inmate Mark Garraway’s inmate account. . . at that point in time, the Attorney General of the State of New York requested that the TRO be lifted and that all prior proceedings be dismissed without prejudice and without cost to either party.”

Finally, the claim alleges that the:
“[E]state of Luis Angel Maldonado, has been injured and damaged by the inability to collect the funds which would have otherwise been deposited in the inmate’s account of Mark Garraway, but for the negligence of the State of New York, its agents, servants, employees, assigns, etc and in negligently failing to file said monies in the inmate’s account at the correctional facility where Mark Garraway was incarcerated at the time the check was issued; in failing to follow established procedures for the issuance of checks to inmates of New York State correctional facilities; in disbursing, distributing, transferring the aforementioned $35,000 in violation of the order of Justice Bernard J. Malone Jr.; and in otherwise being negligent, careless, reckless, etc.
A “Notice of Intention To Make A Claim” was received by the Attorney General by certified mail on March 8, 2004, more than ninety days after the date upon which claimant alleges the claim accrued: October 7, 2003. The Attorney General rejected the notice of intention as unverified and an “Amended Notice of Intention To Make A Claim” was received by the Attorney General by certified mail on March 15, 2004. Both the notice of intention and amended notice of intention alleged that this “claim is being filed within six (6) months after the claim accrued as required by law.”

The claim was filed with the Clerk of the Court of Claims on October 6, 2005 and personally served on the Attorney General the same day.

Pursuant to Court of Claims Act § 10 (3):
“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.”
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]; Roberts v State of New York, 11 AD3d 1000, 1001 [4th Dept 2004]; Pristell v State of New York, 40 AD3d 1198 [3d Dept 2007]).

If the claim seeks damages to claimant’s property based upon the negligence or unintentional tort of the State, the Court is constrained by the statutory and case law described above to dismiss the claim as untimely.

Claimant, however, contends that the claim is:
“[N]ot for personal injuries of the [claimant] herein, but rather a claim that the State of New York failed to deposit the funds in the inmate account. This claim is being made pursuant to the Executive Law section 632-a(1)(d), commonly known as the “Son of Sam Law.”
Claimant adds that, in addition to the State’s failure to deposit the funds in the inmate account, the claim is:
“[F]or the negligence outlined in the Intentions to File a Claim. No claim is being made for injuries to property or for personal injuries caused by the negligence or unintentional tort of an officer employee of the State.”
Finally, claimant asserts that “the claim herein falls under section 10(4) of the Court of Claims Act, which requires the claim to be made within six(6) months of the accrual of the claim.”

Court of Claims Act § 10 (4) provides as follows:
“A claim for breach of contract, express or implied, and any other claim not otherwise provided for by this section, over which jurisdiction has been conferred upon the court of claims, shall be filed and served upon the attorney general within six months 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 such accrual.”
Claimant suggests that § 10 (4) applies because the claim is “not otherwise provided for by this section.” The Court disagrees.

Executive Law § 632-a provides no express cause of action in favor of claimant. The statute provides a means by which a crime victim is notified by the Crime Victims Board that “funds of a convicted person” are about to be, or have been, paid to a “person convicted of a specified crime” (Executive Law §§ 632-a [1] [c]; [2] [a]; [2] [c]). The statute further permits a crime victim:
“[T]o bring a civil action in a court of competent jurisdiction to recover money damages from a person convicted of a crime of which the crime victim is a victim, or the representative of that convicted person, within three years of the discovery of any profits from a crime or funds of a convicted person, as those terms are defined in this section” (Executive Law § 632-a [3]).
Upon receipt of a copy of a summons and complaint (or notice that a summons and complaint will be filed) by a crime victim against a person convicted of a specified crime, the Crime Victims Board “shall,” among other things, “avoid the wasting of the assets identified in the complaint as the newly discovered profits from a crime or as funds of a convicted person” (Executive Law §§ 632-a [4]; [5] [c]). To avoid such waste, the Crime Victims Board “shall have the right to apply for any and all provisional remedies that are also otherwise available to the plaintiff” (Executive Law §§ 632-a [6]). These provisional remedies include “attachment, injunction, receivership and notice of pendency” (Executive Law §§ 632-a [6] [a]).

Finally, the statute sets up an administrative hearing process by which a “person or entity [which] has knowingly and willfully failed to give notice [to the Crime Victims Board of an impending payment to a person convicted of a specified crime], other than the state, . . .,” may be ordered to pay an “assessment” to the Crime Victims Board which may ultimately be used to satisfy a crime victim’s judgment for “damages incurred as a result of the crime” ((Executive Law §§ 632-a [7] [a] [i]; [b]).

Significantly, the statute does not require any person or entity to deposit the funds of a convicted person in any particular account. It mandates that notice of an impending payment to a person convicted of a specified crime be given to the Crime Victim’s Board. Here, the notice required by the statute was apparently given by the Comptroller to the Crime Victim’s Board, assuming the allegations of the claim are true.

The record does not reveal why the purported $35,000.00 payment from the Comptroller to Garraway was not deposited in Garraway’s inmate account, other than claimant’s allegation of “negligence.”

Arguably, the statute may support imposition of a duty on the part of the Crime Victim’s Board to avoid waste of the funds of a convicted person for the benefit of a crime victim. But even assuming that the statute imposes such a duty, claimant must still show that the defendant negligently violated that duty in order to recover money damages.

A sensible (and literal) reading of the claim demonstrates that claimant is alleging that the estate has “been injured and damaged” by the “negligence of the State of New York” and that the defendant’s actions or inactions deprived (potentially) the claimant of up to $35,000.00.

Claimant’s allegation that the defendant violated the temporary restraining order of the Albany County Supreme Court does not remove the claim from the requirements of § 10 (3). In Syndicate Bldg. Corp. v City University of New York (151 Misc 2d 492, 494 [Ct Cl 1991]), the court considered the timeliness of a claim alleging that the defendant transferred certain funds to a judgment debtor in violation of a restraining notice. The court held that “the violation of a restraining notice sounds in tort” and is governed by the ninety day filing and service requirements of § 10 (3), noting that:
“While it is true that nowhere in section 10 is a cause of action for the violation of a restraining notice set forth in haec verba, neither are the torts of nuisance, malpractice nor for the violation of statutory rights, just to mention three. Yet all of these have been held to be subject to the 90-day time limit set forth in Court of Claims Act § 10 (3). (see, e.g., Wolff v State of New York, 137 AD2d 684; Brown v State of New York, 125 AD2d 750, lv dismissed 70 NY2d 747; Sperry v State of New York, 50 AD2d 618, affd 40 NY2d 997). ”
The claim sounds in negligence and is governed by the ninety period for filing and service provided by § 10 (3).

Defendant’s motion to dismiss the claim is granted.


December 20, 2007
Albany, New York

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


Papers Considered:

  1. Defendant’s Notice of Motion, filed October 31, 2007;
  2. Affidavit of Dennis M. Acton, sworn to October 30, 2007, with annexed exhibits;
  3. Affirmation of Joseph V. Tejeiro, dated November 13, 2007.