New York State Court of Claims

New York State Court of Claims

BROWN v. THE STATE OF NEW YORK, #2008-030-022, Claim No. 113378


Synopsis


Claim alleging excessive force by correction officers, brought by inmate claimant proceeding pro se, dismissed. Defendant never served with the claim, and only one of the notices of intention claimant served was served directly upon the attorney general by certified mail return receipt requested, but was untimely. No affidavit of service is appended to the filed claim. No answer was served or filed. 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. Defendant receiving a notice of intention reacts differently than it would to receipt of the actual claim. Claimant understood distinction between notice of intention and claim.

Case Information

UID:
2008-030-022
Claimant(s):
JUSTIN BROWN
1 1.The caption has been amended to reflect the only proper defendant.
Claimant short name:
BROWN
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):
113378
Motion number(s):

Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
JUSTIN BROWN, 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:
September 8, 2008
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Justin Brown alleges in his filed claim that on or about September 26, 2005 a correction officer at Sing Sing Correctional Facility punched him in the face, thereby using excessive force, for which the defendant should be held liable. Trial of the matter was to have gone forward on August 22, 2008.


On that date, defendant made an oral motion to dismiss, asserting that the Attorney General’s Office had never been served with the claim, resulting in a lack of subject matter jurisdiction. In support of the application, the Court was presented with documentation [see Exhibit A] indicating that although claimant had served a series of notices of intention to file a claim,[2] he had failed to serve the claim itself upon the Office of the Attorney General as required. No affidavit of service is appended to the filed claim. No answer was served or filed. 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.

After some colloquy between claimant, the assistant attorney general, and the Court, however, what was and was not served on the defendant as required was unclear and warranted further review. Claimant was given the opportunity to check his own records to see whether he had some proof that the claim was served on the Attorney General’s Office.

From the Court’s review of the file, claimant served a document by certified mail, return receipt requested, which he entitled “Notice of Intention to file a Claim” that was received by the Attorney General’s Office on December 29, 2005. [Exhibit A]. The notice of intention contained an attachment with exactly the same material that was later attached to the claim filed in this Court on February 25, 2007: Two (2) untitled typewritten pages dated December 15, 2005 containing a narrative description of the facts in unnumbered paragraphs that contains an ad damnum clause, a sketch of the alleged assault, a “Request for Production of Documents” dated November 30, 2005, and an “Affidavit in Support of Application Pursuant to CPLR 1101” sworn to December 15, 2005 (including an authorization for release of financial information). [See Exhibit A].

Notably, however, having served the notice of intention on the attorney general with all the attachments in December 2005, claimant subsequently filed the additional document he entitled “Claim” in the Office of the Chief Clerk of the Court of Claims on February 26, 2007, with all the same attachments as those appended to the notice of intention served in December 2005. This filing with the Clerk’s Office would tend to show claimant’s understanding that there was a distinction between the two documents, namely, that notwithstanding service of the notice of intention, an actual claim would then need to be filed as well. It is not clear whether Mr. Brown understood that the defendant had to be served with the claim in addition to the notice of intention, but it is not his understanding that controls whether the Court has jurisdiction. Indeed, in the filed claim Mr. Brown attests to having served a notice of intention to file a claim in December 2005. [See Claim No. 113378]. The letter from the Clerk’s Office to claimant acknowledging the filing advises that if proof of service of the claim upon the defendant had not yet been filed, claimant should file same immediately. [Ibid.]. As noted, no affidavit of service was filed with regard to service of the claim upon the attorney general.

As requested, claimant submitted some additional documentation by mail that was received by this Court on September 2, 2008. The disbursement request forms and the certified mail receipts dated, respectively, October 4, 2006 and February 26, 2007 show only that something was received in the Office of the Chief Clerk of the Court of Claims on those dates, not that documents were served on the Attorney General’s Office.

Court of Claims Act §11(a) provides that a 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). 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).[3] Failure to serve the claim at all results in a lack of subject matter jurisdiction that is not waiveable. Dreger v New York State Thruway Auth., 81 NY2d 721 (1992).

While there is always a disinclination to dispose of matters based on what seem to be technicalities, the situation here straddles mixed issues of personal and subject matter jurisdiction.

The defendant who is served with a document that has been presented as a notice of intention to file a claim - a very specific document with a specific purpose in Court of Claims practice - is entitled to rely on the document being what it appears to be. A notice of intention is not a pleading[4] per se [see Sega v State of New York, 246 AD2d 753 (3d Dept 1998), appeal denied 92 NY2d 805 (1998)], but rather serves the multiple function of alerting the defendant as to its need to investigate the matter the notice addresses, and of affording a claimant an additional period in which to serve and file his claim. In a case such as this one, involving an intentional tort, claimant would have been afforded one (1) year from the date of accrual within which to serve his claim upon the Attorney General, and file it with the Clerk of the Court. Court of Claims Act §10(3-b).

The defendant served with a notice of intention to file a claim, unlike a defendant served with a claim, does not then serve an answer raising the full panoply of defenses available. Presumably, the notice of intention is reviewed, docketed and - having been alerted to the likelihood of a claim - the defendant expects service at some time within the time constraints suggested by whatever cause of action is asserted in the notice.

In contrast, a defendant served with a claim must raise waiveable defenses related to personal jurisdiction concerning timeliness and manner of service in the answer or pre-answer motion it serves on claimant. Court of Claims Act §11(c). Here, even though the notice of intention contains much of the same material as that ultimately attached to the filed claim, and, indeed, satisfies the statutory and regulatory requirements for the contents of a claim [see Court of Claims Act §11(b); 22 NYCRR §206.6], it is still not the claim that was filed with this court, defendant was only served with a document it was entitled to treat as what it was labeled, and the filed claim was never served on the defendant.[5]

Finally, the notice of intention served on December 29, 2005[6], was not served within ninety (90) days of accrual of the claim as required. Thus, while it may have alerted the defendant to matters raised therein, it did not operate to allow claimant additional time within which to serve and file his claim. Even if the notice of intention had been timely served, a claim alleging a cause of action in the nature of a battery would have to have been properly served on the Attorney General’s Office and filed by September 26, 2006. Court of Claims Act §10(3-b).

Accordingly, claimant has failed to establish that he served the filed claim upon the defendant as required, resulting in a lack of subject matter jurisdiction. Defendant’s motion to dismiss, upon which decision was reserved at trial, is hereby granted, and Claim Number 113378 is in all respects dismissed.

Let judgment be entered accordingly.


September 8, 2008
White Plains, New York

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




[2].It appears that only one of these notices was served directly upon the Attorney General by certified mail, return receipt requested. Others were mailed to the Chief Clerk of the Court of Claims (returned to claimant) and to the Westchester County Supreme Court (mailed to the Attorney General’s Office). [Exhibit A].
[3]. “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.”
[4]. Except when it must be “rejected” under verification rules surrounding defective pleadings. See Civil Practice Law and Rules §§3020, 3022.
[5]. See also Court of Claims Act §10(8) concerning treating a timely and properly served notice of intention as a claim. A motion for such relief must be made within one (1) year of accrual based on a cause of action for intentional tort [Civil Practice Law and Rules §215(3)] thus such an application, as well as any application for permission to serve and file a late claim [Court of Claims Act §10(6) ], is time-barred premised on a date of accrual of September 26, 2005.
[6]. By the Court’s calculations, a claim or a notice of intention to file a claim should have been served and filed by December 26, 2005, that is ninety (90) days after it accrued on September 26, 2005.