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
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,
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
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 §
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)
, 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
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
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