New York State Court of Claims

New York State Court of Claims

KELLY v. THE STATE OF NEW YORK, #2008-030-508, Claim No. 112807, Motion Nos. M-74431, CM-74476


Synopsis


Defendant’s cross-motion to dismiss claim filed in 2006 granted. Claim was served on the Attorney General’s office by regular mail only, rather than personally or by certified mail, return receipt requested as required. Lack of personal jurisdiction was appropriately raised in the answer, the defense is not waived. Additionally, Civil Practice Law Rules §3211(e) setting forth 60 day time limitation for dispositive motions based upon asserted failures properly serve certain listed pleadings does not apply in Court of Claims, thus no requirement that defendant move expeditiously to dismiss claim. Even meritorious claims may be dismissed under these circumstances. Claim alleges that Green Haven Correctional Facility negligently or intentionally failed to provide him with eyeglasses containing prescribed photo-gray lenses he paid for out of his inmate account in or about June, 2005, in the amount of $22.50, but instead only gave him state issue eyeglasses provided to eligible inmates every 2 years free of charge

Case Information

UID:
2008-030-508
Claimant(s):
DARYL KELLY
Claimant short name:
KELLY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112807
Motion number(s):
M-74431
Cross-motion number(s):
CM-74476
Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
DARYL KELLY, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: J. GARDNER RYAN, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

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

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers were read and considered on claimant’s motion for summary


judgment and to strike the answer [M-74431] and on defendant’s cross-motion to dismiss [CM-


74476]:

1,2 Notice of Motion for Summary Judgment; Affidavit in Support of Motion for Summary Judgment by Daryl Kelly, claimant and attached papers

3,4 Notice of Cross-Motion; Affirmation by J. Gardner Ryan, Assistant Attorney General and attached exhibits

  1. Reply Affirmation by Daryl Kelly, claimant
6,7 Filed papers: Claim, Answer

Daryl Kelly alleges in his claim that defendant’s agents at Green Haven Correctional Facility negligently or intentionally failed to provide him with eyeglasses containing prescribed photo-gray lenses although he had paid for same out of his inmate account in or about June 2005, in the amount of $22.50. He alleges he received glasses on March 27, 2006 that did not contain the photo-sensitive lenses he had paid for, but instead were the standard state issue eyeglasses which eligible inmates are entitled to receive free of charge every two years. After he realized that the lenses were not correct he filed a grievance on July 19, 2006, which was denied as untimely. The present claim was served by regular mail on the Attorney General on September 25, 2006. [Affirmation by J. Gardner Ryan,¶5, Exhibit 1].

In its answer, in addition to general denials, the defendant raises three affirmative defenses, including a third affirmative defense that the court lacks jurisdiction in that the claim was untimely served, and was not served by the proper means.

Defendant’s cross-motion to dismiss the claim is addressed first because it disposes of the matter. The defendant first argues that the claim was not served and filed within the time constraints provided under Court of Claims Act §10(4). Under that provision, a claim alleging a breach of express or implied contract - or any other cause of action over which the court has jurisdiction for which time periods for service and filing have not been set forth elsewhere - must be served and filed within six (6) months of accrual unless a notice of intention is served upon the Attorney General within six (6) months of accrual, in which case the claim may be served and filed within two (2) years of its accrual. Because the cause of action asserted is not one for injury or loss to personal property - a bailment - whereby claimant would be required to first exhaust his personal property claims remedy, and then serve and file his claim within 120 days of exhaustion of his administrative remedy [see Court of Claims Act §10(9); 7 NYCRR Part 1700], claimant does not benefit from any toll associated with pursuing such administrative remedy, defendant argues.

If the claim is read to assert a cause of action for negligence or medical malpractice, in that claimant asserts that the failure to provide prescribed eyeglasses was a failure to provide adequate medical care, then a claim or a notice of intention asserting such a cause of action should have been served and filed within ninety (90) days of its accrual. Court of Claims Act §10(3). Since neither a claim or a notice of intention to file a claim was served within that period, then the claim was untimely served and filed, the defense was properly preserved in the answer, and is thus subject to dismissal. See Court of Claims Act §11(c).

Defendant also avers that the claim does not state a particular date in March 2006 when Mr. Kelly received the state-issue eyeglasses, in order to ascertain when the cause of action accrued, and thus determine whether a claim served and filed on September 25, 2006 was timely. Such pleading omission makes the claim defective as well, defendant states. Court of Claims Act §11(b).

Finally, defendant argues that the claim was served on the Attorney General’s Office by regular mail only, rather than personally or by certified mail, return receipt requested as required. Court of Claims Act §11(a). Since the resulting lack of personal jurisdiction was appropriately raised in the answer, the defense is not waived, and the claim should be dismissed. See Court of Claims Act §11(c).

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). A failure to serve the claim as 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).[1] Failure to serve the claim at all results in a lack of subject matter jurisdiction that is not waivable.

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).

If the claim is read to assert a cause of action for negligence or medical malpractice, the claim is untimely. If read as a a claim alleging breach of contract to deliver the goods paid for - which is apparently how the defendant read the claim - the claim does not appear to be untimely because it was served on September 25, 2006, just within six (6) months of claimant’s receipt of the eyeglasses on March 27, 2006. [See Claim Number 112807, ¶4]. Thus this aspect of defendant’s cross-motion is denied.

More significantly, however, the claim was not served by the proper means, that is, personally, or by certified mail, return receipt requested. Accordingly, claimant has not been able to establish that he served the claim upon the Attorney General as required, and the defendant has raised the jurisdictional issue in its answer and now in its cross-motion. It is noted that Civil Practice Law and Rules §3211(e)[2], setting forth a sixty (60) day time limitation for dispositive motions based upon asserted failures to properly serve certain listed pleadings, simply does not apply in the Court of Claims. [See Diaz v State of New York, 174 Misc 2d 63, 65 (Ct Cl 1997)]. Thus raising the defense of improper service in an answer served in October 2006 is sufficient to preserve the defense, there being no requirement that defendant move more expeditiously to dismiss the claim. Claimant has failed to establish, by a fair preponderance of the credible evidence, that the Attorney General was served with a copy of the claim as required by Court of Claims Act §11(a), and has thus failed to obtain personal jurisdiction over the defendant.

Defendant’s cross-motion to dismiss is, therefore, granted.

Claimant’s motion is denied as moot. The failure to serve the claim as required is not an excusable defect in form under Civil Practice Law and Rules §2101(f) as argued by claimant. Unfortunately, even what may well be a meritorious claim may be dismissed because of such service failures. It is noted that the court is not dismissing this claim on the merits, nor was there a denial on the merits of Mr. Kelly’s facility claim to obtain reimbursement of the $22.50 allegedly taken from his inmate account.

The court notes that no additional motion for late claim relief has been brought by claimant. [See Court of Claims Act §10(6)].[3] A motion for permission to serve and file a late claim must be timely brought in order to allow that a late claim be filed “. . . at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules . . . ” Court of Claims Act § 10(6). Presuming that an action by a citizen could be brought within the six (6) year statute of limitations period provided for in Civil Practice Law and Rule §213, a motion for late claim relief would be timely if made before March 27, 2012; if a negligence action applies there is a three (3) year statute of limitations [Civil Practice Law and Rules §214]; and if a medical malpractice cause of action is asserted there is a two and one-half (2 ½) year statute of limitations. [Civil Practice Law and Rules §214-a]. By the court’s calculations, under a negligence theory the time within which to make a late claim motion expires before March 27, 2009 and under a medical malpractice theory the time to make the motion expires in September 2008.

Based on the foregoing, claimant’s motion [M-74431] for summary judgment and to strike the answer is denied, and defendant’s cross-motion [CM-74476] to dismiss is granted, and Claim number 112807 is in all respects dismissed.



February 28, 2008
White Plains, New York

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




[1]. “Any objection or defense based upon failure to comply with (i) the time limitations contained in section 10 of this act, (ii) the manner of service requirements set forth in . . . [11(a)], or (iii) with 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.”
[2]. Civil Practice Law and Rules §3211(e) provides: “Number, time and waiver of objections; motion to plead over. At any time before service of the responsive pleading is required, a party may move on one or more of the grounds set forth in subdivision (a), and no more than one such motion shall be permitted . . . .an objection that the summons and complaint, summons with notice, or notice of petition and petition was not properly served is waived if, having raised such an objection in a pleading, the objecting party does not move for judgment on that ground within sixty days after serving the pleading, unless the court extends the time upon the ground of undue hardship . . . The papers in opposition to a motion based on improper service shall contain a copy of the proof of service, whether or not previously filed. An objection based upon a ground specified in paragraph eight or nine of subdivision (a) is waived if a party moves on any of the grounds set forth in subdivision (a) without raising such objection or if, having made no objection under subdivision (a), he or she does not raise such objection in the responsive pleading.” (emphasis added).
[3].In order to determine an application for permission to serve and file a late claim, the Court must consider, “among other factors,” the six factors set forth in §10(6) of the Court of Claims Act. The factors stated therein are: (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 meritorious; (5) whether substantial prejudice resulted from the failure to timely serve upon the Attorney General a claim or notice of intention to file a claim, and the failure to timely file the claim with the Court of Claims; and (6) whether any other remedy is available. A copy of the proposed claim must be included.