New York State Court of Claims

New York State Court of Claims

McGLOTTEN v. THE STATE OF NEW YORK, #2008-030-510, Claim No. 114638, Motion No. M-74478


Synopsis


Pre-answer motion to dismiss claim alleging medical malpractice granted. No personal jurisdiction over the defendant because claim not served either personally, or by certified mail return receipt requested. No estoppel applied as to service. Cause of action asserted does not require exhaustion as a condition precedent to suit, thus claimant’s arguments have no bearing. Similarly academic is whether the continuous treatment doctrine applies with respect to the accrual date, given the conclusive grounds for dismissal raised, although certainly based upon the asserted accrual date of September 2, 2007 the claim was not timely served and filed. Issue of lack of verification not reached. No assertion by the defendant that the claim was rejected by defendant on that basis [see Civil Practice Law and Rules §3022; Lepkowski v State of New York, 1 NY3d 201, 210 (2003)]. Arguments re: failure to state the “nature of the claim” in the pleading in terms of the adequacy of the description not reached. See Court of Claims Act §11(b).

Case Information

UID:
2008-030-510
Claimant(s):
DENNIS C. McGLOTTEN
Claimant short name:
McGLOTTEN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114638
Motion number(s):
M-74478
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
DENNIS C. McGLOTTEN, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: BARRY KAUFMAN, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
March 4, 2008
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers were read and considered on defendant’s pre-answer motion to


dismiss:

1,2 Notice of Motion; Affirmation in Support of Motion to Dismiss by Barry Kaufman, Assistant Attorney General and attached exhibit

  1. Response to Motion to Dismiss by Dennis C. McGlotten, Claimant
  1. Filed paper: Claim
Dennis McGlotten alleges in his claim that defendant’s agents at Green Haven Correctional Facility failed to provide him with timely and adequate medical care on or about September 2, 2007. The claim was served upon the office of the Attorney General on December 21, 2007 - 110 days after its accrual - by regular mail. [Affirmation in Support of Motion to Dismiss by Barry Kaufman, Assistant Attorney General, ¶3, Exhibit 1].

In this pre-answer motion to dismiss, the defendant argues that the claim was both untimely, in that it was served more than ninety (90) days after its accrual, and served improperly, in that it was served by regular mail, rather than personally, or by certified mail, return receipt requested as required. See Court of Claims Act §§10(3) and 11(a). Since the resulting lack of personal jurisdiction has been appropriately raised by motion, the defense is not waived, and the claim should be dismissed. See Court of Claims Act §11(c).

The defendant also argues that the claim is not properly verified as required and does not fulfill the pleading requirements of Court of Claims Act §11(b). The statute provides that “[t]he claim shall state the time when and place where such claim arose, the nature of same, [and] the items of damage or injuries claimed to have been sustained . . . [and] shall be verified in the same manner as a complaint in an action in the supreme court.” Court of Claims Act §11(b). Defendant argues that the claim does not contain an adequate description as to how the medical department acted or failed to act with regard to claimant’s treatment, in addition to its defective verification.

In response to the defendant’s motion, the claimant first concedes that he asserted a date of accrual of September 2, 2007, but wanted to exhaust his administrative remedies by waiting for the administration to “correct the problem.” [Response to Motion to Dismiss by Dennis C. McGlotten, Claimant, ¶1B]. He argues that the claim of “malpractice is an ongoing thing, as of today February 4th, 2008.” [Id.]. He also maintains that the description of the nature of the claim is clear, in that it “. . . states that certain medical procedures were not being followed, that by not following the prescribed procedures that the claimants [sic] life was being put into jeopardy which constituted malpractice and neglect.” [Response to Motion to Dismiss by Dennis C. McGlotten, Claimant, ¶ 2B]. Finally, he alleges that he put in a request for certified mail with the “original envelope and sent it to the facility mailroom to be processed. Claimant followed the procedures to the best of his abilities.” [Response to Motion to Dismiss by Dennis C. McGlotten, Claimant, ¶ 3B].

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 timely and properly 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).

Unless some other precept, such as the doctrine of equitable estoppel, is applied, a court will grant a motion to dismiss premised upon the preserved defense of improper service. See: Wattley v State of New York, 146 Misc 2d 968 (Ct Cl 1990)[2]; cf. Rivera v State of New York, 5 AD3d 881 (3d Dept 2004)[3]; Folks v State of New York, UID # 2006-009-077, Claim No. 112365, Motion No. M-71955 (December 19, 2006, Midey, J.)[4]; see also Francis v State of New York, 155 Misc 2d 1006 (Ct Cl 1992).[5]

Defendant’s motion to dismiss the claim based upon its improper service is granted. Claimant’s arguments concerning exhausting his administrative remedies have no bearing on the issues raised by the defendant, given the cause of action asserted herein which does not require exhaustion as a condition precedent to suit. Similarly academic is whether the continuous treatment doctrine applies with respect to the accrual date, given the conclusive grounds for dismissal raised, although certainly based upon the asserted accrual date of September 2, 2007 the claim was not timely served and filed. The court also does not reach the issue of lack of verification - notably there is no assertion by the defendant that the claim was rejected by defendant on that basis [see Civil Practice Law and Rules §3022; Lepkowski v State of New York, 1 NY3d 201, 210 (2003)] - and does not reach defendant’s arguments concerning a failure to state the “nature of the claim” in the pleading in terms of the adequacy of the description. See Court of Claims Act §11(b).

Concerning the issue of proper service, only claimant’s statement in his Response to this motion - to the effect that he requested that the mail be sent by the appropriate means and that mailroom personnel did not send the mail in the manner requested - has been offered to rebut defendant’s motion. No copies of any disbursement request forms, or indication on a transmittal of some type of his intentions to the mailroom - the words “legal mail” written on the outside of an envelope [see Affirmation in Support of Motion to Dismiss, Exhibit 1] do not necessarily mean that the item should be sent certified mail, return receipt requested - or a copy of his inmate account statement showing a withdrawal for the correct amount, have been offered to substantiate his statement. See e.g. Wattley v State of New York, supra at 969.[6] Claimant has not provided any substantiation of his alleged attempt to serve the mail as statutorily required.

Accordingly, defendant’s motion to dismiss is hereby granted, on the ground that the claimant failed to obtain personal jurisdiction over the defendant as required, because he failed to serve the claim either personally, or by certified mail, return receipt requested, and claim number 114638 is in all respects dismissed.

March 4, 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 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.”
[2]. Court denied defendant’s motion to dismiss for improper service. Claimant said he had attached the disbursement form for certified mail to his claim, but it apparently fell off, and additionally presented evidence that his inmate account was debited for the cost of certified mail, return receipt requested service. “Absent sufficient rebuttal (see, Cole v State of New York, 64 AD2d 1023, 1024), we find the circumstances call for the invocation of equitable estoppel to prevent defendant from being rewarded for its own apparent breach of duty . . . (citation omitted).” Wattley v State of New York, supra, at 969. Additionally, the facility had an additional obstacle to getting proof of service in place, in that an inmate would only receive a receipt indicating that the special mailing request had been approved and processed, without any initial documentation that the mail was delivered to the facility mailroom.

[3]. Claimant argued that he was entitled to invoke the doctrine of equitable estoppel because of the facility mailroom’s delay in processing his legal mail which resulted in the notice of intention being untimely filed. There is no mention of the manner of service. The appellate division determined that “. . . claimant . . . failed to demonstrate that the mailroom delay arose out of any omissions or malfeasance on the part of the facility’s mailroom personnel
. . . [A] review of the record reveals that the mailroom personnel followed proper procedures in processing claimant’s legal mail.”
[4].Court declined to invoke equitable estoppel saying: “although the Court finds that claimant made an initial request to facility officials to have his claim served by certified mail, return receipt requested, he has submitted no evidence whatsoever to establish that he pursued his request, or submitted any further information to facility officials when his initial request was denied for lack of supporting information.” Interestingly, claimant demonstrated that he had timely asked the mailroom to send the claim certified mail, return receipt requested, and that his request was denied with a note saying “Inmate must show proof that these envelopes are court mandated to be there by a certain date.”
[5]. Court held that the State was estopped to assert defense that notice of intention not served properly, when the process server attempting personal service utilized directory at Attorney General’s Office indicating a room set aside for service of process, and clerk at desk when asked whether authorized to accept service of what was clearly marked as a Notice of Intention to file a claim indicated he could accept document and stamped process server’s receipt.
[6].“While the mere allegation of a State failure to act is not sufficient to overcome the presumption of regularity (see, e.g., Richardson, Evidence §72 [Prince 10th ed]), at bar we have the documentary equivalent of an admission by defendant that claimant’s mailing request was received and charged for, but not acted on . . . (citation omitted). Claimant did what he was supposed to do and all that defendant allowed . . . [thereby relying] on defendant’s employees to properly do their job . . . (citation omitted). Plainly it would be a manifest injustice in these particular circumstances to penalize claimant for the sins of negligence or intent committed by State officers or employees . . . (citation omitted).”