New York State Court of Claims

New York State Court of Claims

DAMON v. THE STATE OF NEW YORK, #2008-030-530, Claim No. 114989, Motion No. M-74864


Synopsis


Defendant’s pre-answer motion to dismiss claim granted. Claim not timely served. Fact that the certified mail postage was not paid by claimant’s attorney immaterial since defendant accepted service.

Case Information

UID:
2008-030-530
Claimant(s):
ANTONIO DAMON
1 1.The caption has been amended to reflect the only proper defendant.
Claimant short name:
DAMON
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):
114989
Motion number(s):
M-74864
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
LAW OFFICE OF PAUL TRACHTE BY: KENYON C. TRACHTE, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: JEANE L. STRICKLAND SMITH, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
June 13, 2008
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read and considered on defendant’s motion to dismiss the


claim:

1,2 Notice of Motion; Affirmation in Support of Motion to Dismiss by Jeane L. Strickland Smith, Assistant Attorney General and attached exhibits

  1. Affirmation in Opposition by Kenyon C. Trachte, Counsel for Claimant, and attached exhibits
  1. Filed paper: claim
Antonio Damon alleges in his claim that defendant’s agents at Downstate Correctional Facility allowed a dangerous icing condition to accumulate causing him to slip, fall and suffer injury, on or about December 18, 2007. In lieu of an answer, the defendant has served the present motion to dismiss asserting that claimant has failed to properly serve the claim as required, resulting in a lack of personal jurisdiction.

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 during the time or 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).[2] 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).

Assuming a date of accrual of December 18, 2007, claimant was required to serve a notice of intention, or serve and file a claim itself, within ninety (90) days, or by March 17, 2008. As noted, service is complete when it is received by the Attorney General’s Office. Accordingly, the claim was not timely served, resulting in a lack of personal jurisdiction, duly raised by the defendant in this pre-answer motion to dismiss.

As to the indications that the proper postage for certified mail, return receipt requested was not paid by claimant’s attorney, seemingly the Attorney General’s Office nonetheless accepted service and, rather than not sign for the mail, monies were expended to pay the difference. [See Affirmation in Support of Motion to Dismiss by Jeane L. Strickland Smith, ¶3, Exhibits A and B]. Whether this raises yet another issue of jurisdictional dimension is not reached by the court.

In any event, claimant has not been able to establish that he timely served the claim upon the Attorney General as required, and the defendant has raised the jurisdictional issue in a timely motion. Court of Claims Act §11(a). Accordingly, Claim Number 114989 is hereby dismissed for a lack jurisdiction.[3]

June 13, 2008
White Plains, New York

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




[2]. “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) 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.”
[3]. The court notes that any motion for late claim relief must be timely brought “...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....” § 10(6) Court of Claims Act. Here, if a negligence cause of action is asserted, a three (3) year statute of limitations applies. See Civil Practice Law and Rules §214.