New York State Court of Claims

New York State Court of Claims

ANTONUCCI v. THE STATE OF NEW YORK, #2007-044-561, Claim No. 113755, Motion No. M-73612


Synopsis


Defendant's motion granted, and inmate's claim for medical malpractice dismissed as untimely.

Case Information

UID:
2007-044-561
Claimant(s):
VINCENT ANTONUCCI
Claimant short name:
ANTONUCCI
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113755
Motion number(s):
M-73612
Cross-motion number(s):

Judge:
CATHERINE C. SCHAEWE
Claimant’s attorney:
DONNA MARIA LASHER, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Michael C. Rizzo, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 15, 2007
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant commenced this action seeking recovery for medical malpractice which allegedly occurred while he was in the custody of the Department of Correctional Services (DOCS). Claimant alleges that he underwent prostate surgery at Albany Medical Center on June 30, 2005, and that this claim accrued on October 25, 2005 when he discovered that he was experiencing erectile dysfunction and reverse ejaculation as a result of the surgery.[1] Defendant State of New York (defendant) now moves to dismiss the claim on the ground that it is untimely. Claimant opposes the motion. In an action to recover for damages caused by the negligence of an officer or employee of the State, the claim must be filed with the Clerk of the Court and served upon the Attorney General within 90 days after the accrual of the claim, unless a notice of intention to file a claim is served upon the Attorney General within 90 days after the accrual of such claim (Court of Claims Act § 10 [3]). Court of Claims Act § 11 (a) further requires that service on the Attorney General's office be made either personally, or by certified mail, return receipt requested.

Claimant, proceeding pro se at that time, served a “Notice of Intention to File A Claim” on the office of the Attorney General on December 12, 2005. However, defendant has included in its motion papers a copy of the envelope which has postage of only $0.37 (clearly less than that required for certified mail, return receipt requested) and which is also completely devoid of any indication that it was sent certified mail, return receipt requested. Moreover, claimant has not provided a copy of a receipt or return postcard.

Claimant provides his affidavit in opposition to defendant’s motion, and attempts to explain the absence of either a receipt or return postcard. Claimant states that he is familiar with the filing requirements of the Court of Claims Act and always utilizes certified mail, return receipt requested when filing claims. Claimant avers that he filed this “claim” by certified mail, return receipt requested, and that he specifically recalls receiving a return postcard because a name was scribbled in the “received by” box rather than the postcard being stamped “received.” Claimant states that he has been moved several times while in DOCS’ custody, and speculates that because neither he nor counsel has possession of the postcard, it must have been lost during his transfer between correctional facilities.

Notwithstanding claimant’s alleged familiarity with the Court of Claims Act, he mistakenly states that on prior occasions he has filed several “notices of claim” with the Attorney General, rather than having served notices of intention to file claims upon the Attorney General. Furthermore, claimant states that “[t]he claim herein was filed in the same way,” but he completely fails to address service of the Notice of Intention.

Based upon the evidence in the record, claimant has failed to meet his burden of establishing proper service of the Notice of Intention on the Attorney General (Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687 [2000]; Hopkins v Tinghino, 248 AD2d 794 [1998]). Accordingly, the Notice of Intention is invalid and thus did not extend the time in which to file and serve a claim under Court of Claims Act § 10 (3) (see Fulton v State of New York, 35 AD3d 977 [2006], lv denied 8 NY3d 809 [2007]).

That defect, however, would not be fatal if claimant had properly filed and served a claim upon the Attorney General within 90 days of its accrual (Court of Claims Act § 10 [3]). Accepting claimant’s allegation as true, this claim accrued on October 25, 2005. The claim herein was filed with the Clerk of the Court and served upon the Attorney General on May 29, 2007, clearly more than 90 days after its accrual.[2] Claimant’s failure to timely file and serve this claim deprives the Court of subject matter jurisdiction (see Lichtenstein v State of New York, 93 NY2d 911, 913 [1999]; Tooks v State of New York, 40 AD3d 1347 [2007]). Accordingly, defendant’s motion is granted and Claim No. 113755 is dismissed.

November 15, 2007
Binghamton, New York

HON. CATHERINE C. SCHAEWE
Judge of the Court of Claims


The following papers were read on defendant’s motion to dismiss:

1) Notice of Motion filed on June 25, 2007; Affidavit of Michael C. Rizzo, AAG, sworn to on June 20, 2007, and attached Exhibits 1 and 2.

2) Affirmation in Opposition of Donna Maria Lasher, Esq., dated August 7, 2007, and attached Affidavit of Vincent Antonucci sworn to August 6, 2007.


Filed papers: Claim filed on May 29, 2007.



[1]. For the purpose of this motion, defendant appears to be accepting claimant’s allegation that the claim accrued on October 25, 2005 (Affidavit of Michael C. Rizzo, AAG, in support of the motion, ¶ 3).
[2].January 23, 2006 was the 90th day after October 25, 2005.