New York State Court of Claims

New York State Court of Claims

GOMEZ v. THE STATE OF NEW YORK, #2008-037-043, Claim No. 112059, Motion No. M-75750


Synopsis


Defendant’s motion for summary judgment is granted and the claim is dismissed as being jurisdictionally defective.

Case Information

UID:
2008-037-043
Claimant(s):
WILLIE GOMEZ
Claimant short name:
GOMEZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112059
Motion number(s):
M-75750
Cross-motion number(s):

Judge:
JEREMIAH J. MORIARTY III
Claimant’s attorney:
Willie Gomez, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo
New York State Attorney General
By: Wendy E. MorcioAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 9, 2009
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following were read and considered with respect to Defendant’s motion for summary judgment dismissing the claim:
1. Notice of motion and supporting affidavit of Assistant Attorney General Wendy E. Morcio

sworn to October 16, 2008, with annexed Exhibits A-D.


Filed papers: Claim filed March 8, 2006; Answer filed May 22, 2006.

This is an action for wrongful confinement, unlawful search, false misbehavior report, medical malpractice, harassment, deprivation of clothing, sanitary housing and religious diet, and other acts of negligence allegedly committed by personnel of the Department of Correctional Services (DOCS) while the pro se Claimant was incarcerated in the special housing unit (SHU) at Wende Correctional Facility. Defendant brings this motion for summary judgment dismissing the claim.

Pursuant to § 10 (3) of the Court of Claims Act, a negligence claim against the State of New York must be filed and served within 90 days of accrual unless the Claimant serves upon the Attorney General within the same 90-day period a notice of intention to file a claim, in which event the claim shall be filed and served within two years of the accrual of the claim. The various acts of negligence and the malpractice complained of occurred while Claimant was confined to the SHU. Claimant was released from SHU on May 23, 2005 (see ¶ 21 of the claim annexed to Defendant’s papers as Exhibit C). The negligence and malpractice claims, therefore, accrued on May 23, 2005, at the latest. Moreover, a cause of action for wrongful confinement or false imprisonment accrues when claimant is released from confinement (Charnis v Shohet, 2 AD3d 663 [2003]). Thus, the latest possible accrual date for the negligence, malpractice and wrongful confinement causes of action is May 23, 2005. The claim was served on February 3, 2006 and filed on March 8, 2006, more than 90 days after the latest accrual date. The filing and service requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]). The claim would, therefore, have to be dismissed unless the filing and service requirements of the Court of Claims Act were effectively extended by the timely and proper service upon the Attorney General of a notice of intention to file a claim.

Defendant admits that the Attorney General’s Office received a notice of intention to file a claim from Claimant on June 16, 2005, within 90 days of accrual of the various causes of action alleged in the claim. Because this notice was unverified, Defendant treated it as a nullity and immediately returned it to Claimant (see June 16, 2005 letter of Janet A. Barringer attached to Defendant’s papers as part of Exhibit A). A verified notice of intention to file a claim was received by the Attorney General’s Office on July 1, 2005, also within 90 days of accrual. Defendant argues, however, that this notice of intention was improperly served by regular mail. Defendant properly preserved these defenses by raising both the unverified original notice of intention and the improperly served subsequent notice of intention as affirmative defenses in its answer (see Defendant’s Exhibit D). Attached to Defendant’s papers as part of Exhibit A is a copy of the envelope in which the July 1, 2005 notice of intention was served. The envelope shows postage of 37 cents, the amount required for regular mail postage at the time. Pursuant to § 11 (a) of the Court of Claims Act, however, a notice of intention must be served personally or by certified mail, return receipt requested. Because the original notice of intention was unverified and the subsequent notice of intention was served by an unauthorized method of service, both are invalid and neither serves to extend Claimant’s time to file and serve a claim pursuant to § 10 (3) of the Court of Claims Act.

On September 1, 2005, Claimant served the Attorney General’s Office with a third notice of intention to file a claim. This time, however, the notice was served by certified mail, return receipt requested (see Defendant’s Exhibit B). This notice of intention, however, was not served within 90 days of the May 23, 2005 accrual date. Accordingly, Claimant is not entitled to the two-year extension of time to file and serve a claim allowed by Court of Claims Act § 10 (3) and the claim filed and served more than 90 days after accrual is untimely and must be dismissed (Turley v State of New York, 279 AD2d 819 [2001]; Philippe v State of New York, 248 AD2d 827 [1998]).

Defendant also argues that many of the causes of action alleged in the claim were not raised in any of the notices of intention served by Claimant. The Court agrees. For example, none of the notices of intention allege a deprivation of religious beliefs, unsanitary housing conditions, failure to restore Claimant’s privileges, retaliation, assaults or threats. Thus, even if one or more of Claimant’s notices of intention to file a claim had been properly verified or properly and timely filed, none would effectively extend Claimant’s time to file and serve a claim alleging causes of action not properly raised in any of the notices of intention.

In addition, Defendant argues that the claim does not state a cause of action for negligence or medical malpractice. Court of Claims Act § 11 (b) requires a claim to “state the time when and place where such claim arose, the nature of same, and the items of damages or injuries claimed to have been sustained and, except in an action to recover damages for personal injury, medical, dental or podiatric malpractice or wrongful death, the total sum claimed.” While absolute exactness is not required, there must be substantial compliance with § 11 (b) to enable the State to promptly investigate the claim and to ascertain its liability (Lepkowski v State of New York, 1 NY3d 201 [2003]; Heisler v State of New York, 78 AD2d 767 [1980]). Here, Claimant failed to set forth an exact date on which each separate act of negligence or malpractice occurred, failed to enumerate the act or acts of DOCS’ personnel which allegedly constituted negligence or malpractice, and failed to even allege that DOCS’ personnel deviated from acceptable standards of medical care. Claimant’s claim simply fails to substantially comply with the jurisdictional requirements of § 11 (b) of the Court of Claims Act.

Based on the foregoing, it is hereby

ORDERED, that Defendant’s motion no. M-75750 is granted and claim no. 112059 is dismissed.



January 9, 2009
Buffalo, New York

HON. JEREMIAH J. MORIARTY III
Judge of the Court of Claims