New York State Court of Claims

New York State Court of Claims

JENKINS v. THE STATE OF NEW YORK, #2008-030-551, Claim No. 115221, Motion Nos. M-75183, CM-75306


Synopsis


Pre-answer motion to dismiss granted; cross-motion for permission to serve and file late claim granted. Inmate claimant alleges in his claim that he injured his hand while working in the dish room of the mess hall at Downstate Correctional Facility when he attempted to reposition an operating fan and his hand slipped through the cover of the fan and into the fan blades. An unverified notice of intention to file a claim was timely served (but by regular mail). An untimely, unverified claim was served on the Attorney General's office by certified mail, return receipt requested. Defendant did not reject and return either NI or claim with due diligence, therefore the defense of lack of proper verification is not preserved

Case Information

UID:
2008-030-551
Claimant(s):
MONARD JENKINS
Claimant short name:
JENKINS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115221
Motion number(s):
M-75183
Cross-motion number(s):
CM-75306
Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
MICHAEL R. SCOLNICK, P.C.BY: MICHAEL R. SKOLNICK, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: JEANE STRICKLAND SMITH, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
August 19, 2008
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers were read and considered on the cross-motions filed herein:

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

3,4 Notice of Cross-Motion to Late File a Claim; Affirmation in Support of Cross-Motion to Later Serve Claim and in Opposition to Respondent’s (sic) Motion to Dismiss; and attached exhibits

  1. Affirmation in Opposition to Cross-Motion to File a Late Claim and attached exhibit
  1. Filed Papers: Claim
Monard Jenkins, an inmate, alleges in his claim that on August 6, 2007 he injured his hand while working in the dish room of the mess hall at Downstate Correctional Facility when he attempted to reposition an operating fan and his hand slipped through the cover of the fan and into the fan blades. An unverified notice of intention to file a claim was served by regular mail on the Attorney General’s Office on August 21, 2007. [Affirmation in Support of Motion to Dismiss by Jeane L. Strickland Smith, Assistant Attorney General, ¶3, Exhibit A]. An unverified claim was served on the Attorney General’s Office by certified mail, return receipt requested on May 23, 2008. [Ibid. ¶4, Exhibit B].
Motion to Dismiss
Court of Claims Act §11(a) requires that a Notice of Intention - as well as the claim - be served upon the attorney general either personally, by certified mail, return receipt requested, or by facsimile transmission under limited circumstances, within the times prescribed in Court of Claims Act §10. Service is complete when it is received in the Attorney General’s Office. Court of Claims Act §11(a)(i). Service upon the Attorney General by the wrong method, or late service, results in a lack of personal jurisdiction over the State, unless the State has failed to properly plead jurisdictional defenses or raise them by pre-answer motion. Court of Claims Act§11(c).


Court of Claims Act §11(c) states:
“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 subdivision a of this section, or (iii) the verification requirements as set forth in subdivision b of this section 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.”

Defendant’s pre-answer motion seeks dismissal of the claim based upon claimant’s failure to properly serve a verified notice of intention; and claimant’s failure to timely serve a verified claim within ninety (90) days of his claim’s accrual.

Court of Claims Act §11(b) requires that a notice of intention “. . . state the time when and place where such claim arose, [and] the nature of same . . . ” The purpose of the notice of intention is to put the State on notice of a potential suit against it, so that it may investigate the claim and infer a theory of liability. It also acts to extend the period within which a claim must be served and filed, provided it has been properly served and contains the required information. While it need not be scrutinized with the same attention as a pleading, it should nonetheless perform its notice function, as well as provide specific enough information to determine whether any subsequently served and filed claim is timely filed. Here, since the notice of intention was served by improper means, it did not serve to toll the period within which claimant was required to serve and file his claim, thus the claim that was later served and filed was untimely, because it was not served and filed within ninety (90) days of its accrual as required. Court of Claims Act §10(3).[1]

On the basis of timeliness alone, the claim must be dismissed.

Additionally, although claimant served the claim by the proper means, that is, by certified mail return receipt requested, the claim itself is purportedly not properly verified [see Civil Practice Law and Rules §3021], and may therefore be defective and subject to dismissal if the defect has been properly raised on this basis as well. The defect has not, however, been properly raised.

In Lepkowski v State of New York, 1 NY3d 201, 209, n. 5, 210 (2003), the Court of Appeals provided that the recipient of an unverified pleading waives objection to an absent or defective verification and may not “treat it as a nullity” if the pleading is not returned with notification of the reasons for the defect with due diligence in accordance with Civil Practice Law and Rules §3022.[2] From the papers presented herein, it is not established that defendant has rejected the pleading by returning it as required with due diligence, the first requirement when a party is in receipt of an unverified pleading which it intends to treat as a nullity. See Scott v State of New York, 46 AD3d 664 (2d Dept 2007), Rister v City University of New York, 20 Misc 3d 195 (Ct Cl 2008), see also Malik v State of New York, 52 AD3d 1235 (4th Dept 2008). Raising the issue in a pre-answer motion, or setting forth the defense in the answer, without the requisite return and notice, does not alone avoid waiver. See Rister v City University of New York, supra.

Based on the foregoing, defendant’s motion to dismiss is granted because the court lacks jurisdiction, and claim number 115221 is in all respects dismissed.
MOTION FOR LATE CLAIM RELIEF
Claimant moves for permission to serve and file a late claim in accordance with Court of Claims Act §10(6).[3] A motion for permission to serve and file a late claim must be 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 . . . ” Court of Claims Act

§10(6). Given a date of accrual of August 6, 2007, and presuming a negligence cause of action where the statute of limitations for other civil actions is three (3) years [ Civil Practice Law and Rules §214], the application is timely.
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. The Court is afforded considerable discretion in determining whether to permit the late filing of a claim. See e.g. Matter of Gavigan v State of New York, 176 AD2d 1117, 1118 (3d Dept 1991). The presence or absence of any particular factor is not dispositive Bay Terrace Coop. Section IV, Inc. v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, 55 NY2d 979, 981 (1982); Broncati v State of New York, 288 AD2d 172 (2d Dept 2001). Thus even if there is no reasonable excuse, in the absence of prejudice to the State and with unresolved facts at issue it may be an abuse of discretion to deny late claim relief. Hughes v State of New York, 25 AD3d 800 (2d Dept 2006); Jomarron v State of New York, 23 AD3d 527 (2d Dept 2005).

A copy of the proposed claim[4], must accompany the motion, allowing the Court to ascertain the particulars of the claim, including the date of accrual, specific location of the alleged accident, and what permanent injuries are alleged. See Court of Claims Act §11(b); 22 NYCRR §206.6. Although claimant did not include a copy of the proposed claim, it is apparent from the context that claimant intends the filed claim to serve as his proposed claim thus the motion is adequately supported in that regard.

A claim appears to be “meritorious” within the meaning of the statute if it is not patently groundless, frivolous or legally defective and a consideration of the entire record indicates that there is reasonable cause to believe that a valid cause of action exists. Matter of Santana v New York State Thruway Auth, 92 Misc 2d 1 (Ct Cl 1977). Claimant need not establish a prima facie case at this point, but rather the appearance of merit. A general allegation of negligence, and a failure to adequately set forth sufficient facts to show the merit of the claim, will not suffice. Olsen v State of New York, 45 AD3d 824 (2d Dept 2007); Anderson v City University of New York, 8 AD3d 413, 414 (2d Dept 2004).

The excuses offered concerning ministerial failures and law office failures are not reasonable ones, but do not conclude the matter in any event since the absence of a reasonable excuse for failing to timely serve and file a claim is but one of the factors to be considered.

The closely related factors of notice, opportunity to investigate and prejudice to the State, considered together, weigh toward granting the motion. Albeit ineffectually, the claimant did serve a notice of intention within ninety (90) days of the accrual of his claim, and the State has already investigated the matter. The delay is not so extreme as to make it difficult to investigate the claim further and defend it.

As to the availability of another remedy, it would seem that there might be an alternative remedy against the manufacturer of the fan, thus this factor weighs against him.

It is well settled that the appearance of merit is viewed as the most important factor to consider in an application to serve and file a late claim, as it would be an act of futility to permit service of a late claim when it is patently defective or is subject to a complete defense. Defendant argues that because claimant did not include an expert’s opinion “in the field of mechanical engineering” concerning the accident he has not established that the claim has merit for late claim purposes. [See Affirmation in Opposition to Cross-Motion to File Late Claim, ¶8]. Defendant also points out that claimant has not “submitted a certified report or sworn statement from a person with knowledge that the fan grate in question was in fact ‘broken’ as stated in the notice of intention.” [Affirmation in Opposition to Cross-Motion to File Late Claim, ¶8].

The threshold for establishing the appearance of merit is not high, and if there are issues of fact as to the merits the motion should be granted. Jomarron v State of New York,

supra
. [5] Moreover, this is not a claim where the necessity of expert testimony is an absolute in order to establish the State’s liability, such as in a medical malpractice cause of action [Perez v State of New York, 293 AD2d 918 (3d Dept 2002)[6]; Schreck v State of New York, 81 AD2d 882 (2d Dept 1981)[7]]; or in a highway design case. See Klinger v State of New York, 213 AD2d 378 (2d Dept 1995);[8] Nyberg v State of New York, 154 Misc 2d 199 (Ct Cl 1992).[9] Certainly, if only the design of the fan were at issue then an expert affidavit might be necessary, because in order to sustain such a cause of action lay testimony alone would not suffice. Here, however, claimant is saying in part the fan was broken and/or not functioning correctly, and such failures should have been revealed by proper maintenance and repair. Indeed, to establish a prima facie case of negligence the following elements must exist: (1) that defendant owed the claimant a duty of care; (2) that defendant failed to exercise proper care in the performance of that duty; (3) that the breach of the duty was a proximate cause of claimant’s injury; and (4) that such injury was foreseeable under the circumstances by a person of ordinary prudence. If the allegations in the claim are accepted as true for the purposes of this motion, claimant has made the requisite showing of merit in order to permit late filing of his claim.

Accordingly, claimant’s cross-motion for permission to serve and file a late claim is hereby granted to the extent that claimant may serve a verified claim - although not the dismissed claim already filed1[0] - upon the Attorney General, containing separately stated and numbered causes of action, within forty-five (45) days from the date of filing of this decision and order in the Clerk’s Office, with such service upon the Attorney General and filing in the Office of the Chief Clerk of the Court of Claims to be in accordance with the Court of Claims Act, with particular reference to §§ 10 ,11, and 11-a, and the Uniform Rules for the Court of Claims.


August 19, 2008
White Plains, New York

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




[1]. In the claim it is stated, without explanation, that this negligence claim is filed pursuant to Court of Claims Act §10(5) (referring to claimants who are under a legal disability under Civil Practice Law and Rules §208); and then it is further stated that the claim is filed within one year of accrual as required by law. [See Claim No. 115221, ¶¶ 4 and 5]. Civil Practice Law and Rules §208 provides in pertinent part: “. . . Infancy, insanity. If a person entitled to commence an action is under a disability because of infancy or insanity at the time the cause of action accrues, and the time otherwise limited for commencing the action is three years or more and expires no later than three years after the disability ceases, . . . the time within which the action must be commenced shall be extended to three years after the disability ceases . . . ; if the time otherwise limited is less than three years, the time shall be extended by the period of disability. The time within which the action must be commenced shall not be extended by this provision beyond ten years after the cause of action accrues, except, in any action other than for medical, dental or podiatric malpractice, where the person was under a disability due to infancy . . . ” Court of Claims Act §10(5) provides: “If the claimant shall be under legal disability, the claim may be presented within two years after such disability is removed.” Without more, there is simply no rationalization for claimant falling under any disability category as suggested parenthetically by claimant.
[2]. Rule 3022 provides: “A defectively verified pleading shall be treated as an unverified pleading. Where a pleading is served without a sufficient verification in a case where the adverse party is entitled to a verified pleading, he may treat it as a nullity, provided he gives notice with due diligence to the attorney of the adverse party that he elects so to do.”
[3]. Claimant has alternatively moved to “amend” his notice of intention. There is no such application, in that a notice of intention is not a document that would be subject to amendment, nor would any amendment be meaningful since the notice of intention was not served by the proper means in the first instance. Treated as an application to have the notice of intention be treated as a claim pursuant to Court of Claims Act §10(8), claimant’s application is also deficient because the document does not contain all the information required [see e.g. Court of Claims Act §11(b); 22 NYCRR §206.6] and was improperly served. Claimant’s arguments concerning “substantial conformance with the Court of Claims Act” with regard to the service of the notice of intention [see e.g. Affirmation by Michael R. Scolnick,¶12] simply misapprehends the law on these issues. As to any failure to properly verify the notice of intention, since defendant did not return the notice of intention as required by the Civil Practice Law and Rules, issues concerning any lack or defect of verification were waived.
[4]. Court of Claims Act § 10(6) states in pertinent part: “. . . The claim proposed to be filed, containing all of the information set forth in section eleven of this act, shall accompany such application . . . ”
[5].“Even if the excuse for failing to file a timely claim is ‘not compelling,’ the denial of a motion to file a late claim may, as here, constitute an improvident exercise of discretion where the delay is minimal, the State suffered no prejudice, and there may be issues of fact as to the merits of the claim . . . (citations omitted).” Jomarron v State of New York, supra.
[6]. In proposed claim alleging that the misdiagnosis and inadequate treatment of a cancerous ulceration on his leg resulted in deformity and permanent injury, medical records alone insufficient in support of late claim motion. Expert medical evidence was required to show that the alleged inadequate treatment of ulcer was inadequate in the first instance, and that the ulcer was cancerous when examined, and how such failures are linked to the damages suffered.
[7]. Court of Claims abused discretion in allowing late claim to be filed in claim alleging medical malpractice where no affidavit by medical expert causally linking birth of brain damaged child to asserted malpractice submitted.
[8]. “The claimant's unsupported opinion that her motor vehicle accident might not have happened had the State installed a traffic light at the intersection where it occurred does not suffice to establish that her claim has merit . . . ” Klinger v State of New York, supra at 379.
[9]. “. . . late claim applications alleging negligence in highway design and construction must be supported by the sworn opinion of someone with related expertise. The absence of a supporting opinion will likely make such a late claim application untenable, albeit allowing for ad hoc exceptions similar to certain medical malpractice claims where a medical opinion may not be necessary if common everyday experience and knowledge allow an assessment of the circumstances . . . (citation omitted).” Nyberg v State of New York, supra at 203.
1[0]. The claim that has been dismissed contains such overbroad (and overwrought) allegations as “[t]his claim is for damages for the unjust, unwarranted, intentional, deliberately indifferent, negligent and/or grossly negligent acts of the defendant, . . . in committing against the Claimant acts amounting to, assault, battery, intentional infliction of emotion harm, and violation of civil rights, all without remorse or regret, and with total disregard for the Claimant, and his constitutional and legal rights.” [Claim No. 115221,¶6]. It also alleges invalid information, such as the “filing” of what the Court has ruled is an ineffective notice of intention and an apparently incorrect reference to Court of Claims Act §10(5); as well as a statement that the claim is filed within one year as “required by law,” among other infirmities. [See Claim No. 115221,¶ ¶ 2,4 and 5]. Paragraphs 12 and 13 of the filed claim, contain a mishmash of various theories of liability in what appears to be a fairly straightforward negligence claim. Counsel for claimant is urged to simplify any claim that may be served and filed pursuant to this Decision and Order.