New York State Court of Claims

New York State Court of Claims

Mc MILLAN v. THE STATE OF NEW YORK, #2008-030-579, Claim No. 115421, Motion Nos. M-75501, CM-75694


Synopsis


Cross-motion to dismiss granted. Claim alleging slip and fall due to dangerous puddling condition in cell at correctional facility served by regular mail. A notice of intention to file a claim was timely served by unspecified means however, even if properly served, notice of intention not adequate.

Case Information

UID:
2008-030-579
Claimant(s):
JOHN Mc MILLAN
1 1.The caption has been amended to reflect the only proper defendant.
Claimant short name:
Mc MILLAN
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):
115421
Motion number(s):
M-75501
Cross-motion number(s):
CM-75694
Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
JOHN Mc MILLAN, 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:
December 1, 2008
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers were read on claimant’s motion to amend his claim and strike


defenses, and on defendant’s cross-motion to dismiss the claim:

1,2 “Notice of Intention to Amend Claim No. 115421 and Motion to Strike defense from the Answer; Request for Permission to Amend” by John Mc Millan, Claimant and attached papers

3,4 Notice of Cross-Motion; Affirmation in Support of Motion to Dismiss and in Opposition to Claimant’s Motion by Barry Kaufman, Assistant Attorney General and attached exhibits

5,6 Filed papers: Claim, Answer

Claimant, an inmate proceeding pro se, alleges in his filed claim that defendant’s agents at Green Haven Correctional Facility negligently created a dangerous puddling condition in the area inside his cell by the daily delivery of hot pots of water, causing him to slip, fall and suffer injury when he returned from the morning meal on September 19, 2007. In its answer, in addition to general denials, defendant asserts eleven affirmative defenses, including the defense that the court lacks personal jurisdiction because claimant failed to timely serve the claim upon the office of the attorney general by certified mail, return receipt requested as required.
Claimant’s Motion to Amend and/or Strike Defenses
Denied as moot, given the resolution of defendant’s cross-motion to dismiss.
Defendant’s Cross-Motion to Dismiss
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 period and 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). Indeed, court rules 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).

Defendant indicates that the claim was received in the attorney general’s office by regular mail on June 25, 2008, and attaches a photocopy of the envelope in which it was mailed showing postage paid in the amount of $1.00: an insufficient amount for certified mail service. [Affirmation in Support of Motion to Dismiss and in Opposition to Claimant’s Motion by Barry Kaufman, Assistant Attorney General, Exhibit B]. The postmark on the envelope is dated June 23, 2008, and the copy of the claim attached to defendant’s moving papers is stamped “received” by the attorney general’s office on June 25, 2008. [Ibid. Exhibits A and B].

Court of Claims Act §10(3) requires that a claim to recover damages for personal injury must be served and filed within ninety (90) days of its accrual. Here the date of claimant’s alleged fall is September 19, 2007. A claim served on June 25, 2008 is untimely based on such a date of accrual, unless a notice of intention to file a claim was served upon the attorney general within ninety (90) days of the accrual date. See Court of Claims Act §10(3)[3].

In that regard, the court notes that in the papers attached to claimant’s moving papers there is a document entitled Notice of Intention to File a Claim that was verified by the claimant on October 26, 2007, which, in a slightly different wording, was also served upon the attorney general’s office as acknowledged in defendant’s affirmation. The Assistant Attorney General notes that defendant received such Notice of Intention on November 5, 2007, but does not indicate whether it was sent by certified mail, return receipt requested. [Affirmation in Support of Motion to Dismiss and in Opposition to Claimant’s Motion by Barry Kaufman, Assistant Attorney General, Exhibit D]. Claimant does not provide information as to service of the notice of intention either.

Additionally, the notice of intention does not contain adequate information to alert the defendant as to the nature of the claim. Triani v State of New York, 44 AD3d 1032 (2d Dept 2007); Grumet v State of New York, 256 AD2d 441 (2d Dept 1998).

Court of Claims Act § 11 (b) requires that a notice of intention to file a claim set forth the time and place in which the claim arose, and the nature of the claim. While the statute
“. . . does not require ‘absolute exactness’, it requires a statement made with ‘sufficient definiteness to enable the State to be able to investigate the claim promptly and to ascertain its liability under the circumstances. The statement must be specific enough so as not to mislead, deceive or prejudice the rights of the State. In short, substantial compliance with section 11 is what is required’. . . (citations omitted). However, ‘conclusory or general allegations of negligence that fail to [state] the manner in which the claimant was injured and how the State was negligent do not meet its requirements.’” Grumet v State of New York, supra.


Here the notice of intention served on the attorney general states “The nature of my claims are from a personal injury I encountered of which I was hospitalized due to water spill that was not promptly cleaned up or advertised as hazardous. This is a prospective tort action, attributed to negligence and or the delinquency of duty.” [See Affirmation by Barry Kaufman, Exhibit D]. No date of accrual is alleged, and it is not clear where the fall occurred within Green Haven - assuming Green Haven was where this occurred - since the facility location is not included either in the notice of intention. Accordingly, if it was properly served, it does not appear that the notice of intention served the function of extending to two (2) years from accrual the date within which the claimant could serve and file his actual claim.

The claimant has not established that he served the claim upon the attorney general as required, and the defendant has raised the jurisdictional issue in the ninth and tenth defenses in its answer [see Affirmation in Support of Motion to Dismiss and in Opposition to Claimant’s Motion by Barry Kaufman, Assistant Attorney General, Exhibit C], and in a timely motion. Accordingly, Claim Number 115421 is hereby dismissed for a lack of personal jurisdiction.[4]



December 1, 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) 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]. “A claim to recover damages for . . . personal injuries caused by the negligence . . . of the state . . .shall be filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after the accrual of such claim.”
[4].
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, since a negligence cause of action is asserted, a three (3) year statute of limitations applies. see Civil Practice Law and Rules §214. Any motion for late claim relief must be brought within three (3) years of September 19, 2007.