New York State Court of Claims

New York State Court of Claims

LANE v. CENTRAL NEW YORK PSYCHIATRIC CENTER, MR. WATTS, MS. KRAEGER, MR. CHARLES BATT, MS. MAXYMILLIN, MS. PALMER, MS. ANDERSON, MR. GONZALEZ, RISK MGMT., #2008-042-516, Claim No. 114388, Motion No. M-74817


Synopsis


This is a motion brought by defendant to dismiss the claim pursuant to CPLR Rule 3211 (2) and (8) for lack of personal jurisdiction and/or subject matter jurisdiction. The court grants the defendant’s motion.

Case Information

UID:
2008-042-516
Claimant(s):
ANDRE LANE
Claimant short name:
LANE
Footnote (claimant name) :

Defendant(s):
CENTRAL NEW YORK PSYCHIATRIC CENTER, MR. WATTS, MS. KRAEGER, MR. CHARLES BATT, MS. MAXYMILLIN, MS. PALMER, MS. ANDERSON, MR. GONZALEZ, RISK MGMT.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114388
Motion number(s):
M-74817
Cross-motion number(s):

Judge:
NORMAN I. SIEGEL
Claimant’s attorney:
ANDRE LANE, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 30, 2008
City:
Utica
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This matter comes before the court on defendant’s motion to dismiss the claim pursuant to CPLR Rule 3211 (a) (2) and (8) for lack of personal jurisdiction and/or subject matter jurisdiction. This motion is unopposed. The court considered the following papers:
1. Pre-Answer Notice of Motion to Dismiss Claim, filed April 14, 2008
2. Affirmation of Joel L. Marmelstein, Esq., dated April 14, 2008
3. Exhibits A - B, annexed to the moving papers

_____________________________________


The underlying claim seeks damages for claimant’s loss of personal property while a patient at the Central New York Psychiatric Center.[1] The claim alleges that it accrued on September 17, 2007. However, the claim was not served on the Attorney General until March 10, 2008.

It is the contention of the Attorney General that inasmuch as Court of Claims Act § 10 (3) required claimant to serve either the notice of intention to file a claim or the claim itself on the Attorney General within 90 days from the date of accrual, and since claimant has failed to meet that deadline, this claim is not timely. “The notice of claim requirements in Court of Claims Act §§ 10 and 11 are jurisdictional prerequisites to the maintenance of a claim and must be strictly construed” (Phillips v State of New York, 237 AD2d 590). Inasmuch as there was no notice of intention to file a claim, and inasmuch as the claim itself was not served until approximately 175 days following the date of accrual, this claim is untimely and is, therefore, dismissed on this ground.

Additionally, defendant argues that the claim was not properly served, as the requirements of Court of Claims Act § 11 (a) (i) have not been met. The claim was not served upon the Attorney General by certified mail return receipt requested, as evidenced by the envelope in which the claim was served.

Court of Claims Act § 11 (a) (i) specifically provides that:

[t]he claim shall be filed with the clerk of the court; and, except in the case of a claim for the appropriation by the state of lands, a copy 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 law is well established that the “requirements of . . . Section 11 of the Court of Claims Act are jurisdictional in nature and, therefore, must be strictly construed” (Finnerty v New York State Thruway Authority, 75 NY2d 721, 722, citing with favor, Buckles v State of New York, 221 NY 418, 423 - 424). In Finnerty, where the Attorney General had not been properly served under Court of Claims Act § 11, the court found that the failure to properly so serve resulted “not in a failure of personal jurisdiction . . . but in a failure of subject matter jurisdiction which may not be waived.” (Finnerty v New York State Thruway Authority, 75 NY2d 721, 723). “[T]he use of ordinary mail to serve the claim upon the Attorney-General is insufficient to acquire jurisdiction over the State” (Philippe v State of New York, 248 AD2d 827 [3rd Dept 1998]).

Thus, this court failed to obtain jurisdiction over the defendant as a result of the claimant Andre Lane’s failure to properly serve the defendant. The claim is dismissed on this ground.

The court need not reach any other issues raised by defendant.

In sum, this claim is dismissed both because it is untimely and because of improper service upon the defendant.



June 30, 2008
Utica, New York

HON. NORMAN I. SIEGEL
Judge of the Court of Claims




[1]. The named defendants are the Central New York Psychiatric Center and seven named individuals, who are presumably employees of the Center. However, the only proper party defendant in this matter would be the State of New York. Since no objection to claimant’s failure to name the State of New York as a defendant has been made by the Attorney General, and since the Central New York Psychiatric Center is a “department” within the state, the only true defendant is the State of New York.