New York State Court of Claims

New York State Court of Claims

LEONARD v. THE STATE OF NEW YORK, #2008-009-014, Claim No. 114804, Motion No. M-74641


Synopsis


Defendant’s motion to dismiss the claim was granted with respect to causes of action for

illegal confinement, and dental malpractice, but was denied with respect to a bailment cause of action.

Case Information

UID:
2008-009-014
Claimant(s):
FRANKLIN LEONARD
Claimant short name:
LEONARD
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114804
Motion number(s):
M-74641
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
FRANKLIN LEONARD, Pro Se
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General
BY: Joel L. Marmelstein, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
June 24, 2008
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

Decision

Defendant has brought this pre-answer motion to dismiss this claim.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation 1,2


Response to Defendant’s Motion to Dismiss 3

Correspondence from claimant to Joel L. Marmelstein, Esq., Assistant Attorney General, dated March 19, 2008 4


“Notice of Motion”, “Affidavit in Support of Motion to Dismiss Claim as Defective”[1] ..5,6

In his claim, claimant asserts three separate causes of action. The first cause of action sounds in wrongful confinement, the second is based upon allegations of dental malpractice and/or negligence, and the third sounds in bailment, as claimant is alleging the wrongful destruction of certain items of his personal property.

According to the affirmation of defendant’s attorney (see Item 2), a Notice of Intention to File a Claim was received by the Attorney General on December 13, 2007. This notice of intention was sent by regular mail, and not by certified mail, return receipt requested. A claim was then served upon the Attorney General on February 7, 2008, by certified mail, return receipt requested.

With regard to the first two causes of action (wrongful confinement and dental malpractice/negligence), defendant contends that service of the notice of intention is a legal nullity, due to claimant’s failure to send it by certified mail, return receipt requested as required by Court of Claims Act § 11(a)(i). Defendant further contends that claimant’s time to then serve his claim was therefore not extended (as would have been permitted by a properly served notice of intention), rendering the service of the claim on February 7, 2008 untimely and jurisdictionally defective.

As indicated by claimant’s response papers (see Items 3-6), and particularly by his correspondence to defendant’s attorney (see Item 4), claimant apparently agrees with defendant’s attorney that his claim was not timely served, but only with respect to the causes of action alleging illegal confinement and dental malpractice. Claimant has agreed to withdraw these two causes of action which have been asserted in this claim.

The service and filing requirements for inmate bailment claims, however, are distinct from the jurisdictional prerequisites pertaining to intentional torts (§ 10[3-b]) or those based upon negligence (§ 10 [3]). Section 10(9) of the Court of Claims Act requires an inmate to first exhaust administrative remedies and then serve and file a claim within 120 days from such date.

In this matter, claimant contends that he requested, but never received, an administrative review of his bailment claim. He apparently alleges that his claim accrued on October 10, 2007, when certain items of his personal property were confiscated. Additionally, defendant concedes that the claim was received by the Attorney General on February 7, 2008, and that such claim was mailed by certified mail, return receipt requested, in compliance with statute. Therefore, without any allowance for the time it presumably took claimant to attempt to exhaust his administrative remedies, this claim was served, by this Court’s calculations, on the 120th day following his loss of property, and is therefore timely with respect to the bailment cause of action.

Defendant further contends, however, that claimant has failed to state “the total sum sought” as required by Court of Claims Act § 11 (Lepkowski v State of New York, 1 NY3d 201; Kolnacki v State of New York, 8 NY3d 277), with respect to the bailment cause of action. Claimant, however, has set forth the sum of $40,000.00 in his ad damnum clause of his claim. Even though this amount presumably covers damages allegedly resulting from all three causes of action originally asserted in his claim, and is not limited to the sole remaining cause of action, claimant nevertheless has satisfied the strict pleading requirements required by Lepkowski.

Defendant also contends that claimant has failed to attach “a schedule showing in detail each item of damage claimed and the amount of such item” as required by § 206.6(b) of the Uniform Rules for the Court of Claims. Although § 206.6 of the Uniform Rules sets forth additional requirements for a claim or notice of intention to file a claim, in addition to those requirements prescribed by § 11 of the Court of Claims Act, it is only those requirements set forth in § 11 that must specifically be included in a claim to provide this Court with subject matter jurisdiction (Lepkowski v State of New York, supra; Kolnacki v State of New York, supra).

Therefore, as long as a claimant has satisfied the jurisdictional prerequisites set forth in § 11, the failure to comply with additional technical pleading requirements contained in the Court’s Rules does not divest this Court of jurisdiction to hear and determine the claim.

Accordingly, for the reasons set forth herein, it is

ORDERED, that with respect to the causes of action for illegal confinement and dental malpractice, Motion No. M-74641 is hereby GRANTED,and those causes of action are hereby dismissed; and it is further

ORDERED, that with respect to the cause of action sounding in bailment, Motion No. M-74641 is hereby DENIED, and that cause of action is retained.

June 24, 2008
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims




[1]. Although the captions of these documents indicate that claimant has attempted to serve and file his own motion seeking dismissal of this claim, the Court has treated these papers as additional and supplemental responses to defendant’s motion to dismiss.