New York State Court of Claims

New York State Court of Claims

VAN KUST v. THE STATE OF NEW YORK, #2008-040-048, Claim No. 115235, Motion No. M-75074


Synopsis


Claim dismissed as it does not meet pleading requirements of Court of Claims Act § 11(b) and is also untimely filed and served.

Case Information

UID:
2008-040-048
Claimant(s):
LYDIA VAN KUST
1 1.Claimant’s first name corrected to reflect its proper spelling.
Claimant short name:
VAN KUST
Footnote (claimant name) :
Claimant’s first name corrected to reflect its proper spelling.
Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115235
Motion number(s):
M-75074
Cross-motion number(s):

Judge:
CHRISTOPHER J. McCARTHY
Claimant’s attorney:
Lydia VanKust, Pro Se
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New YorkBy: Paul F. Cagino, Esq., AAG
Third-party defendant’s attorney:

Signature date:
August 4, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

For the reasons set forth below, Defendant’s pre-answer motion to dismiss pursuant to Court of Claims Act §§ 10 and 11 and CPLR 3211(a)(2) is granted. That portion of the motion seeking dismissal pursuant to CPLR 3211(a)(7) and (8) is denied as moot.

The Claim, which was filed with the Clerk of the Court on May 9, 2008 and served upon Defendant on May 13, 2008 (see Cagino Affirmation in Support, ¶ 3), asserts that from February 8, 2003 to March 21, 2003 Claimant worked for the State of New York and was paid for only one day, February 8, 2003. The Claim further asserts that Claimant’s services consisted of providing medical care to clients in their own homes. It is alleged that the State approved the amount agreed upon and then failed to pay for the service.

In support of the State’s motion, Assistant Attorney General Paul F. Cagino asserts that CPLR § 3013 requires that pleadings be sufficiently particular to give the court and parties notice of the transactions or occurrences intended to be proved and the material elements of each cause of action (id., ¶ 4). He further asserts that the instant Claim does not provide “sufficiently particular” notice of any matters except that Claimant worked for the State of New York. Counsel states that the allegations in the Claim do not provide sufficient information as to what the alleged cause of action is, or if it is a negligence or breach of contract action (id., ¶ 5).

In opposition to the motion, Claimant asserts in a letter that “this [dispute] is an [ongoing] matter with the Department of Health” regarding money to which she is entitled for work performed (Letter dated June 24, 2008). Attached to the letter to the Court are copies of an October 5, 2004 letter to the Executive Deputy Commissioner of the New York State Department of Health and six pages of Medicaid Management Information Systems Medical Assistance (Title XIX) Program Remittance Statements. Those statements indicate that Claimant was denied payment for services reportedly rendered on numerous dates during 2003. The forms report that Claimant was paid for other dates for service during that period. Many of the dates fall outside the time frame for which the Claim seeks payment.

Section 206.1(c) of the Uniform Rules for the Court of Claims provides that matters not covered by the Court of Claims Act or the Court of Claims Rules shall be governed by the Civil Practice Law and Rules (hereinafter CPLR).

As stated above, Defendant asserts that Claimant’s pleadings are inadequate pursuant to CPLR § 3013; however, Court of Claims Act § 11(b) sets forth the pleading requirements in this Court.

As relevant here, Court of Claims Act § 11(b) places four specific substantive conditions upon the State’s waiver of sovereign immunity by requiring the Claim to specify: (1) the nature of the Claim; (2) the time when it arose; (3) the place where it arose; and (4) the items of damage or injuries claimed to have been sustained.

In reviewing the instant Claim, it is alleged only that Claimant provided medical care to her clients in their own homes from February 8 to March 21, 2003, that she worked for the State, and that she was not paid the amount agreed upon. As pointed out by Defense counsel, the Claim does not assert whether Claimant was an employee of the State, or an agency, was an independent contractor, or was the employee of an independent contractor. Further, there is no indication whether Claimant is proceeding under the legal theory of negligence or breach of contract. Thus, Claimant has not asserted the nature of the Claim, or stated the place or places where the Claim accrued. “The Court of Claims Act does not require the State to ferret out or assemble information that section 11(b) obligates the [C]laimant to allege” (Lepkowski v State of New York, 1 NY3d 201, 208 [2003]; see Czynski v State of New York, __ AD3d __ [3d Dept 2008]). Failure to comply with § 11(b) deprives this Court of subject matter jurisdiction (Lepkowski v State of New York, 1 NY3d 201, supra at 206-209; Czynski v State of New York, AD3d , supra).

Assuming arguendo that the nature of the Claim was properly stated, the Claim still would be dismissed. Whether the Claim is one for negligence or breach of contract, it is not timely filed and served pursuant to the relevant provisions of the Court of Claims Act.

Pursuant to Court of Claims Act § 10(3), a Claim alleging negligence was required to be served and filed within ninety days after accrual unless Claimant, within that time period, served upon the Attorney General a Notice of Intention to File a Claim, in which event the Claim was required to be served and filed within two years after accrual. Pursuant to § 10(4) of the Court of Claims Act, a breach of contract action was required to be served and filed within six months after accrual unless Claimant, within that period of time, served upon the Attorney General a Notice of Intention to File a Claim, in which event the Claim was required to be served and filed within two years after accrual. In either case, Claimant was required to serve and file a Claim within two years after accrual.

Claimant asserts that she was not paid for work that was performed between February 8, 2003 and March 21, 2003. There is no assertion or evidence that Claimant served a Notice of Intention to File a Claim. Thus, the Claim that was filed on May 9, 2008 and served on May 13, 2008 is untimely, as it was not filed within either ninety days (for a negligence claim) or six months (for a contract claim) of accrual. Moreover, even if a Notice of Intention to File a Claim had been timely served on the Attorney General, the Claim itself is still untimely since it was neither served nor filed within two years of accrual as the statute requires.

Therefore, based upon the foregoing, the Claim is hereby dismissed.


August 4, 2008
Albany, New York

HON. CHRISTOPHER J. MCCARTHY
Judge of the Court of Claims


The following papers read and considered by the Court on the State’s motion to dismiss:

Papers Numbered

Notice of Motion, Affirmation in Support 1


Letter to Court from Claimant
& Exhibits Attached 2



Filed Papers: Claim