New York State Court of Claims

New York State Court of Claims

RODIGUEZ v. THE STATE OF NEW YORK, #2008-030-020, Claim No. 112974


Synopsis


Claim for failure to provide adequate post-operative treatment following knee surgery by inmate claimant proceeding pro se dismissed. Notice of intention served regular mail and claim, too, if served at all, was served by regular mail. No answer in file reflects likelihood that claim never served

Case Information

UID:
2008-030-020
Claimant(s):
PEDRO RODRIGUEZ
1 1.The caption has been amended to reflect the only proper defendant.
Claimant short name:
RODIGUEZ
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112974
Motion number(s):

Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
PEDRO RODRIGUEZ, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: ELYSE J. ANGELICO, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
August 28, 2008
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

Pedro Rodriguez, an inmate proceeding pro se, alleges in his claim that defendant’s agents at Sing Sing Correctional Facility (Sing Sing) failed to provide him with adequate post-operative treatment and medical care following knee surgery on or about July 29, 2005 causing him injury. Trial of the matter was to be held at Sing Sing on August 22, 2008.


On that date, the defendant moved to dismiss the claim premised upon claimant’s alleged failure to serve the claim on the Office of the Attorney General. In that connection, the Assistant Attorney General presented an affidavit by Tasha Hunter-Tabron, a clerk in the Claims Bureau in the New York City Office of the Attorney General, charged with keeping track of documents served in litigation in the Court of Claims among other duties. [See Exhibit A and attached documents]. From her review, it appears that a Notice of Intention to file a claim was served on the Attorney General’s Office on October 14, 2005 by regular mail. [Ibid. ¶4]. On October 27, 2005 a document entitled Notice of Intent to file Claim was forwarded from the Westchester County Supreme Court to the Attorney General’s Office, apparently having been filed in that court. [Ibid.].

Thereafter, the defendant received a copy of a letter sent by the Office of the Chief Clerk of the Court of Claims indicating that a Notice of Intention to file a claim erroneously filed[2] in the Clerk’s Office was returned to the claimant on November 4, 2005. [Ibid.]. On January 4, 2006 the Attorney General’s Office received a motion seeking permission to file a late claim by certified mail, return receipt requested, but the motion was never calendared (presumably because it was never filed with the Clerk). [Ibid.]. Finally, on November 17, 2006 the Attorney General’s Office received a copy of a letter to claimant from the Clerk’s Office acknowledging the filing of this claim on November 2, 2006 in the Clerk’s Office, and providing the claim number. [Ibid.].

In response, claimant offered a letter he received from the Attorney General’s Office dated August 7, 2006 apparently responding to Mr. Rodriguez’ correspondence to that office, with an attached receipt showing payment of certified mail postage, and two date stamps: one by the United States Postal Service dated December 29, 2005 and one by the Sing Sing correspondence department dated January 6, 2006, and indicating that the addressee was the Attorney General’s Office in Albany, New York. [Exhibit 1]. No green post card showing what happened when and if the document was sent by the USPS was submitted. [Ibid.]. The time frame on the portion of the receipt that was submitted would appear to show that it refers to the motion papers claimant served on the Attorney General’s Office in January 2006.[3] [Ibid.]. To add to the confusion, the August 7, 2006 letter the Attorney General’s Office wrote to claimant advises that the only document they had in their file was a motion seeking permission to file a late claim that had been served on the Attorney General’s Office by certified mail on “October 24, 2005,” a date that does not appear to reference any of the foregoing. [Ibid.].

More significantly, Mr. Rodriguez quite candidly testified that he “probably” served the claim regular mail. Claimant was unable to show by documentary proof whether he did indeed serve the claim nor could he recall what method of service, if any, he had used.

Court of Claims Act §11(a) provides that the claim must be served personally or by certified mail, return receipt requested, upon the attorney general within the times prescribed in Court of Claims Act §10; and that service is complete when it is received in the Attorney General’s Office. Court of Claims Act §11(a)(i). Court of Claims Act §10(3) requires that a claim alleging negligence or medical malpractice such as the one filed here be served and filed within ninety (90) days of its accrual. The statute also requires that to be effective any notice of intention to file a claim must be served within the time periods provided for service of a claim, by the same methods, here, within ninety (90) days of its accrual. A failure to serve the claim during the time period and in the manner required results in a lack of personal jurisdiction, unless the State has failed to properly plead jurisdictional defenses or raise them by motion. In that case, the defense is waived. Court of Claims Act §11(c).[4] Failure to serve the claim at all results in a lack of subject matter jurisdiction that is not waiveable.

The claimant has the burden of establishing proper service [Boudreau v Ivanov, 154 AD2d 638, 639 (2d Dept 1989)] by a preponderance of the evidence. See Maldonado v County of Suffolk, 229 AD2d 376 (2d Dept 1996). Regulations require that proof of service be filed with the Chief Clerk within ten (10) days of service on the defendant. 22 NYCRR § 206.5(a).

Given a date of accrual of July 29, 2005 claimant was required to serve either his claim or a notice of intention to file a claim on the Attorney General’s Office on or before October 27, 2005 by the proper means. Court of Claims Act §10(3). A notice of intention acts to extend the period within which a claim must be served and filed, provided it has been properly served and contains the required information. If Mr. Rodriguez had served, for example, a notice of intention to file a claim by certified mail, return receipt requested on or before October 27, 2005, claimant would have then been allowed to serve his claim by the proper means on or before July 29, 2007, and to file it with the Clerk within the same time frame.

In reviewing the papers filed in the Office of the Chief Clerk of the Court of Claims, the Court notes that the claim herein was filed on November 2, 2006, and contains an affidavit of service indicating that something was personally served on an unspecified date on an Assistant Attorney General in the White Plains Office by the claimant himself. [See Claim No. 112974]. The notary stamp for the affidavit of service indicates that the affidavit was sworn to on October 27, 2006. [Id.]. No answer was filed in the Clerk’s Office.

Based on the foregoing, it appears that the claim was never served by claimant on the Office of the Attorney General, nor was a timely notice of intention to file a claim served on that office by the proper means. As noted, no answer by the Attorney General was served or filed. This has been found to be “reflective of the failure to have served the claim.” [See Dunn v State of New York, Claim No. 98551, Motion Nos. M-62308, M-62310, CM-62324 (Corbett, Jr., J., September 20, 2000)].

Since claimant has not established that he served the claim upon the Attorney General as required by Court of Claims Act §11(a), this Court does not have subject matter jurisdiction over the claim. Accordingly, defendant’s motion to dismiss, upon which decision had been reserved, is hereby granted, and Claim Number 112974 is dismissed.


Let judgment be entered accordingly.

August 28, 2008
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims



[2]. There has been no requirement that a Notice of Intention be filed in the Office of the Chief Clerk of the Court of Claims since August 1995.
[3]. Indeed, a photocopy of an envelope addressed to the Albany office of the Attorney General stamped as received by the Attorney General on January 4, 2006 contains another portion of a certified mail receipt that has the same routing number as that on the document submitted by claimant. [cf. Exhibits A and 1].
[4]. “Any objection or defense based upon failure to comply with (i) the time limitations contained in section ten of this act, (ii) the manner of service requirements set forth in . . . [11(a)], or (iii) the verification requirements as set forth in . . . [11(b)] and [Civil Practice Law and Rules 3022] is waived unless raised, with particularity, either by a motion to dismiss made before service of the responsive pleading is required or in the responsive pleading, and if so waived the court shall not dismiss the claim for such failure.”