New York State Court of Claims

New York State Court of Claims

ALBRIGHT v. NEW YORK STATE POLICE, #2008-010-035, Claim No. 114739, Motion Nos. M-75135, CM-75217


Synopsis


Motion to dismiss granted, lack of subject matter jurisdiction. Motion to file a late claim denied, no appearance of merit.

Case Information

UID:
2008-010-035
Claimant(s):
SHAWN ALBRIGHT
Claimant short name:
ALBRIGHT
Footnote (claimant name) :

Defendant(s):
NEW YORK STATE POLICE
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114739
Motion number(s):
M-75135
Cross-motion number(s):
CM-75217
Judge:
Terry Jane Ruderman
Claimant’s attorney:
LAW OFFICES OF RICHARD S. CANDEE
By: Ross T. Herman, Esq.Richard S. Candee, Esq.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General for the State of New YorkBy: Wanda Perez-Maldonado, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 20, 2008
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers numbered 1-4 were read and considered by the Court on the State’s motion to dismiss and claimant’s cross-motion for leave to serve and file a late claim:
Notice of Motion, Attorney’s Supporting Affirmation and Exhibits.......................1

Notice of Cross-Motion, Attorney’s Supporting Affirmation and Exhibits.............2

Attorney’s Affirmation in Opposition to Cross-Motion............................................3

Attorney’s Reply Affirmation...................................................................................4
State’s Motion to Dismiss
On January 24, 2008, a claim was filed with the court alleging false arrest, excessive force, and negligent training and supervision of the State police officers involved in an incident which occurred on October 29, 2007. On January 30, 2008, 93 days after the accrual of the claim, a notice of intention was served upon the attorney general. On May 15, 2008 a claim was served upon the attorney general.

The Court of Claims Act requires that either a notice of intention be served upon the attorney general within 90 days after the accrual of such claim or that a claim be served upon the attorney general and filed with the court within 90 days after the accrual (Court of Claims Act § 10[3]). The service requirements set forth in Court of Claims Act §§ 10 and 11 are jurisdictional in nature and require strict compliance and the claim must be served and filed with the applicable time period as a pre-condition of suit against the State (see Dreger v New York State Thruway Auth., 81 NY2d 721, 724). Here, while claimant timely filed a claim with the Court, he failed to timely serve the notice of intention or the claim within 90 days after the accrual of the claim. Thus, claimant did not meet the statutory prerequisites and his claim must be dismissed for lack of subject matter jurisdiction. The requirements of §11 of the Court of Claims Act are to be strictly construed and failure to comply with the service provisions is a jurisdictional defect compelling the dismissal of the claim (see Kolnacki v State of New York, 8 NY3d 277, 281 [“(t)he failure to satisfy any of the (statutory) conditions is a jurisdictional defect”]; Welch v State of New York, 286 AD2d 496, 497-498).

Moreover, the New York State Police is not a proper party defendant in the Court of Claims and any suit against individuals of the New York State Police Department must be brought in State Supreme Court (see Murph v State of New York, 105 Misc 2d 684, 685 [police officers cannot be sued in the Court of Claims and any suit against the officers personally must be brought in a court possessing appropriate subject matter jurisdiction, such as the New York State Supreme Court]).

Accordingly, the State’s motion to dismiss is hereby GRANTED (CPLR 3211[a][2] and [a][7]).
Claimant’s Cross-Motion for Leave to Serve and File a Late Claim
Claimant opposes defendant’s motion and cross-moves for leave to serve and file a late claim.[1] The determination of a motion for leave to file a late claim requires the Court to consider, among other relevant factors, the six factors set forth in Subdivision 6 of Section 10 of the Court of Claims Act: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears to be meritorious; (5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and (6) whether the claimant has another available remedy. The presence or absence of any one factor is not determinative and the list of factors is not exhaustive (see Bay Terrace Coop. Section IV v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, 55 NY2d 979).

The Court has considered the above six factors. Claimant’s purported excuse for his delay in serving the attorney general is the return of the initial mailing due to insufficient postage; this is not a valid excuse (see Nyberg v State of New York, 154 Misc 2d 199 [possible law office failure is not a valid excuse for the failure to timely commence an action]). Nonetheless, this is but one factor to be considered.

Significantly, claimant has failed to establish the appearance of merit of the proposed claim and his reply papers do nothing to amplify the paucity of his cross-motion papers. Indeed, claimant maintained that it was premature and beyond the scope of the present application to require a showing of an appearance of merit at this time (Claimant’s Reply Affirmation ¶¶ 6-7). Rather, claimant maintains that the lack of prejudice shown by defendant is the determinative factor (id. at ¶4). To the contrary, the most significant factor is the appearance of merit of the proposed claim. Unlike a party who has timely filed a claim, a party seeking to file a late claim has the heavier burden of demonstrating that the claim appears to be meritorious (see Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). “A general allegation of negligence on the part of the State is insufficient to establish a meritorious cause of action” (Witko v State of New York, 212 AD2d 889, 891). Further, courts have upheld a denial of a late claim application where there was no showing of substantial prejudice, but the movant failed to make a sufficient factual showing of the appearance of merit of the claim (see City of New York v State of New York, 46 AD3d 1168).

Here, claimant has not submitted any kind of incident report regarding his purported arrest, any witnesses’ statements, nor any photographs or medical records of his purported injuries sustained as a result of the alleged incident (see Anderson v City Univ. of N.Y. at Queens Coll., 8 AD3d 413; [late claim denied when movant failed to adequately set forth facts demonstrating claim had appearance of merit]; see also Matter of Gallagher v State of New York, 236 AD2d 400; Sevillia v State of New York, 91 AD2d 792). Movant’s unsupported self-serving allegations are insufficient to establish the appearance of merit (see Klingler v State of New York, 213 AD2d 378 [claimants’ unsupported opinion does not suffice to establish merit of their claim]). Additionally, claimant has an alternative remedy via suit in Supreme Court against the individual officers (see Nicometti v State of New York, 144 AD2d 1036).

Accordingly, upon weighing all the factors, claimant’s motion for leave to file a late claim is DENIED (see Broncati v State of New York, 288 AD2d 172; Qing Liu v City Univ. of N.Y., 262 AD2d 473).


August 20, 2008
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims




[1]. While claimant has not submitted a proposed claim, the Court has treated Claim No. 114739, attached as exhibit A to claimant’s cross-motion, as the proposed claim.