New York State Court of Claims

New York State Court of Claims

CAGGIANO v. THE STATE OF NEW YORK, #2008-041-018, Claim Nos. 114052, 114616, Motion Nos. M-74954, CM-74970


Synopsis

Motion to dismiss claim as untimely is denied where claim was filed and served within six-month recommencement period provided by CPLR § 205 (a) after dismissal of timely prior claim for failure to satisfy pleading requirements of Court of Claims Act § 11 (b).

Case Information

UID:
2008-041-018
Claimant(s):
MICHAEL CAGGIANO and DONNA CAGGIANO
1 1.The caption is amended to reflect the only proper defendant.
Claimant short name:
CAGGIANO
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption is amended to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114052, 114616
Motion number(s):
M-74954
Cross-motion number(s):
CM-74970
Judge:
Frank P. Milano
Claimant’s attorney:
MC GIVNEY & KLUGER, P.C.By: Christopher A. Bacotti, Esq.
Defendant’s attorney:
HON. ANDREW M. CUOMO
New York State Attorney GeneralBy: Marcie K. Glasser, Esq., Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 7, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision


Claimants move for an order dismissing defendant’s First, Second, Third, Fourth, Seventh, Eighth and Ninth Affirmative Defenses in claim number 114052 (incorrectly identified in claimants’ original motion papers of May 8, 2008 as claim number 112104, a claim previously dismissed), or, alternatively, for a “Declaration that this Court has jurisdiction over this Claim.” Claimants’ request for a “Declaration that this Court has jurisdiction over this Claim” appears intended as an application for permission to file a late claim pursuant to Court of Claims Act § 10 (6), should the Court deny claimants’ motion to dismiss defendant’s jurisdictional defenses, as the Court of Claims lacks jurisdiction to issue declaratory judgments, with one exception, not applicable to this claim (Court of Claims Act § 9 [9-a]; Wikarski v State of New York, 91 AD2d 1174 [4th Dept 1983]).

The defendant opposes the claimants’ motion and cross-moves to dismiss claim numbers 114052 and 114616 (a subsequently filed, third claim). Defendant asserts that both claims are jurisdictionally defective based upon claimants’ failure to comply with Court of Claims Act §§ 10 and 11. Defendant further argues that claimants fail to satisfy the statutory factors set forth in Court of Claims Act § 10 (6) and that permission to file a late claim should therefore be denied.

Defendant’s cross-motion to dismiss claim 114052 is granted based upon claimants’ failure to properly serve the claim on the Attorney General. Defendant’s cross-motion to dismiss claim 114616 is denied since claim 114616 was timely filed and served pursuant to Court of Claims Act §§ 10 and 11 and CPLR § 205 (a). The claimants’ apparent application to file a late claim pursuant to Court of Claims Act § 10 (6) is denied as moot since claim 114616 was timely commenced pursuant to CPLR § 205 (a). Claimants’ motion to dismiss defendant’s First, Second, Third, Fourth, Seventh, Eighth and Ninth Affirmative Defenses in claim number 114052, which has been dismissed, is denied as moot.

Initially, the Court notes that the defendant properly rejected claimants’ motion reply papers which were served by electronic mail without authorization and the Court has not considered the reply papers in deciding the motion and cross-motion. The Court of Claims’ Filing by Electronic Means (FBEM) electronic filing and service rules are found at § 206.5aa of the Uniform Rules for the Court of Claims and on the websites of both the Court of Claims and the Attorney General.

A review of the claim files shows that upon the filing of claims 114052 and 114616, the Clerk of the Court of Claims advised the claimants’ attorney in writing that the claims had accrued in Suffolk County. The Clerk also directed claimants’ attorney to the Court’s website for further information. The FBEM rules set forth on the Court of Claims website do not include Suffolk County as one of the claim accrual counties included in the FBEM pilot project with regard to electronic filing of papers with the Clerk of the Court of Claims or service of papers on the Attorney General.

These claims arise from an emergency room visit by Michael Caggiano at the Stony Brook University Hospital on December 26, 2005. Claimants allege, among other things, that defendant failed to “properly treat, diagnose, test, inform, advise and/or take a proper patient history of claimant Michael Caggiano.”

An initial claim, numbered 112104, was served on March 17, 2006 and filed on March 20, 2006. Claim 112104 was dismissed by the Court’s Decision and Order, filed July 10, 2007, based upon the failure of the claim to set forth any specific injury suffered by Michael Caggiano, as required by Court of Claims Act § 11 (b).

Claimants filed a second claim on August 8, 2007, numbered 114052, this time setting forth specific injuries suffered by Michael Caggiano. The claimants served this claim on the defendant by electronic mail on September 12, 2007.

Defendant filed an answer to claim 114052 on October 24, 2007, setting forth various affirmative defenses, including claimants’ failure to timely file and serve claim 114052.

Claimants filed yet another claim, apparently identical to claim 114052, on December 18, 2007. This claim was numbered 114616. The claimants served the claim on the defendant by certified mail, return receipt requested, on December 18, 2007.

Defendant filed an answer to claim 114616 on January 30, 2008, again setting forth various affirmative defenses, including claimants’ failure to timely file and serve claim 114616.

Pursuant to Court of Claims Act § 10 (3):
“A claim to recover damages for injuries to property or for personal injuries caused by the negligence or unintentional tort of an officer or employee of the state while acting as such officer or employee, shall be filed and served upon the attorney general within ninety days after the accrual of such claim.”
Court of Claims Act § 11 (a) (i), provides, at relevant part:
“[A] copy [of the claim] shall be served upon the attorney general within the times hereinbefore provided for filing with the clerk of the court either personally or by certified mail, return receipt requested.”
The present claims (114052 and 114616) each set forth an accrual date of December 26, 2005 and each were filed and served more than ninety days after the accrual date.

The defendant’s motion to dismiss claim 114052 is granted based upon claimants’ failure to comply with Court of Claims Act § 11 (a) (i). In particular, claimants failed to serve claim 114052 on the Attorney General “personally or by certified mail, return receipt requested.” As set forth above, electronic service of a claim on the Attorney General is not permitted by the (FBEM) except with respect to claims accruing in designated counties. Claim 114052 accrued in Suffolk County which is not a county designated for electronic filing and service by the (FBEM).

Defendant’s motion to dismiss claim 114616 as untimely is denied. CPLR 205 (a) provides as follows:
“New action by plaintiff. If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff, or, if the plaintiff dies, and the cause of action survives, his or her executor or administrator, may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period.”
The Court of Appeals, in Dreger v New York State Thruway Authority (81 NY2d 721, 723 [1992]), has determined that CPLR § 205 (a) applies to Court of Claims practice:
“The Court of Claims Act contains no recommencement provision of its own, but section 10 (6) expressly incorporates the time limitations and tolling provisions of CPLR article 2, and section 9 (9) requires that Court of Claims practice follow Supreme Court practice, unless other provisions are expressly made. Thus, these actions may be recommenced if they qualify for recommencement under CPLR 205 (a).”
In Signature Health Center, LLC v State of New York (42 AD3d 678 [3d Dept 2007]), the court held that the six-month recommencement period provided by CPLR 205 (a) applies to a second claim where the first claim was timely filed and served but was dismissed “as jurisdictionally defective for failure to comply with the substantive pleading requirements of Court of Claims Act § 11 (b)” (Signature, 42 AD3d at 678).

Here, the initial claim, numbered 112104, was timely filed and served but dismissed, by the decision and order filed on July 10, 2007, as jurisdictionally defective for failure to comply with the substantive pleading requirements of Court of Claims Act § 11 (b). The most recent claim (the third one), numbered 114616, was filed with the Clerk of the Court of Claims on December 18, 2007 and served on the Attorney General by certified mail, return receipt requested, on December 18, 2007. The Attorney General apparently received claim 114616 by certified mail on December 24, 2007.

Claim 114616 was filed and served within six months after the termination of claim 112104. Claim 114616 would have been timely if it had been commenced at the time of commencement of claim 112104 and service upon defendant of claim 114616 was effected within the six-month statutory period after dismissal of claim 112104. The requirements of CPLR 205 (a) were met and claim 114616 was therefore timely filed and served.

Claimants’ motion to dismiss defendant’s First, Second, Third, Fourth, Seventh, Eighth and Ninth Affirmative Defenses in claim number 114052, which has been dismissed, is denied as moot. Claimants have not moved to dismiss any of the affirmative defenses set forth in defendant’s answer to claim 114616. Should claimants seek similar relief regarding claim 114616 as they have sought regarding claim 114052, claimants may make an application for such relief.


July 7, 2008
Albany, New York

HON. FRANK P. MILANO
Judge of the Court of Claims


Papers Considered:

  1. Claimants’ Notice of Motion, filed May 12, 2008;
  2. Affirmation of Christopher A. Bacotti, dated May 8, 2008, and annexed exhibits;
  3. Defendant’s Cross Motion to Dismiss, filed May 20, 2008;
  4. Affirmation of Marcie K. Glasser, dated May 19, 2008, and annexed exhibits.