New York State Court of Claims


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New York State Court of Claims

TRANTHAM v. NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES and THE STATE OF NEW YORK, #2007-042-520, Claim No. 113654, Motion No. M-73564


Synopsis


Defendant brought this pre-answer motion to dismiss a portion of the claimant’s claim for lack of subject matter jurisdiction and personal jurisdiction over the defendant. The motion was unopposed. Defendant’s motion is granted.

Case Information

UID:
2007-042-520
Claimant(s):
TORIANO TRANTHAM
Claimant short name:
TRANTHAM
Footnote (claimant name) :

Defendant(s):
NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES and THE STATE OF NEW YORK1 1.While the caption names both the New York State Department of Correctional Services and the State of New York as separate defendants, the former is a department of the latter. As a result, there is in fact only one defendant - the State of New York.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113654
Motion number(s):
M-73564
Cross-motion number(s):

Judge:
NORMAN I. SIEGEL
Claimant’s attorney:
STUART JAY YOUNG, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 31, 2007
City:
Utica
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant brings this matter before the court on a pre-answer motion to dismiss a portion of the claimant’s claim for lack of subject matter jurisdiction and personal jurisdiction over the defendant. The court has considered the following papers:
  1. Notice of Motion, filed June 12, 2007
  2. Affirmation of Joel L. Marmelstein, Esq., dated June 12, 2007
  3. Exhibits A - B, annexed to the moving papers
____________________________________________


This matter comes before the court on a pre-answer motion by the defendant to dismiss a portion of the claimant’s claim for lack of subject matter jurisdiction and personal jurisdiction over the defendant. The motion is unopposed.

The underlying claim alleges two theories of liability. The first is for negligence on the part of defendant arising out of claimant’s fall in an exposed “sewer hole” on May 10, 2005. The second theory of liability is for malpractice arising out of defendant’s treatment of claimant’s injuries during the period of May 10, 2005 through June 6, 2005.

Claimant timely served a Notice of Intention to File a Claim. Thereafter, on May 4, 2007 claimant filed a Claim with the Clerk of the Court. The claim was personally served upon defendant on May 4, 2007.

While the notice of intention to file a claim referred to the claimant’s fall on May 10, 2005 and the resulting injury, it made no reference whatsoever to any subsequent malpractice. The malpractice theory of liability was not raised until it was first raised in the claim itself.

It is defendant’s contention that the claim for malpractice must be dismissed as time-barred pursuant to Court of Claims Act Section 10. Defendant contends that the claim itself, or at least a notice of intention to file a claim, had to be served upon the Attorney General within ninety days of June 6, 2005. Since no claim for malpractice was made until May 4, 2007, defendant argues that this portion of the claim must be dismissed.

Court of Claims Act Section 10 (3) clearly and specifically provides that:

[a] claim to recover damages 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.


Inasmuch as no claim for malpractice was filed within ninety days following June 6, 2005, and inasmuch as no allegation of malpractice was made in the notice of intention to file a claim (which had been timely served), that portion of the claim which seeks to recover under a theory of liability sounding in malpractice is dismissed.



July 31, 2007
Utica, New York

HON. NORMAN I. SIEGEL
Judge of the Court of Claims