New York State Court of Claims

New York State Court of Claims

DEWITT v. THE STATE OF NEW YORK, #2009-009-014, Claim No. 116259, Motion No. M-76301


Synopsis


Defendant’s motion to dismiss the cause of action for negligent maintenance based upon untimely service of the notice of intention and the claim was granted; the cause of action sounding in medical malpractice survived the motion to dismiss.

Case Information

UID:
2009-009-014
Claimant(s):
VALFONSO DEWITT
Claimant short name:
DEWITT
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
116259
Motion number(s):
M-76301
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
VALFONSO DEWITT, Pro Se
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General
BY: Thomas M. Trace, Esq.,
Senior AttorneyOf Counsel.
Third-party defendant’s attorney:

Signature date:
June 17, 2009
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant has brought this pre-answer motion seeking an order dismissing one of the two causes of action asserted in this claim.

The following papers were considered by the Court in connection with this motion:
Pre-Answer Notice of Motion, Affirmation, with Exhibits 1,2


Affidavit in Opposition 3

Correspondence from claimant dated April 14, 2009 4

In his claim, claimant alleges that on June 16, 2007, while he was incarcerated at Marcy Correctional Facility (Marcy), he injured his left knee when he fell in a pothole in the yard at the facility. Claimant alleges that the State was negligent in its inspection and maintenance of this yard (“First Cause of Action”).

Claimant also alleges in this claim that the State is liable for medical malpractice by failing to timely diagnose and treat the injuries suffered by him in this fall (“Second Cause of Action”).

Prior to instituting an answer, the State has moved herein to dismiss that portion of the claim based upon negligent maintenance, due to untimely service and filing of the claim.

A claim alleging acts of negligence against the State must be served on the Attorney General and filed with the Clerk of the Court of Claims within 90 days of accrual, unless a notice of intention is served upon the Attorney General within such 90 days (Court of Claims Act § 10[3]). If a notice of intention is timely served upon the Attorney General, the claim must then be served and filed within two years from the date of accrual.

As set forth in defendant’s moving papers, claimant served a Notice of Intention to File a Claim upon the Attorney General on November 13, 2007 (Exhibit A to Items 1, 2). The Court notes that this Notice of Intention is dated November 6, 2007 and was verified the same day. Claimant subsequently served his claim upon the Attorney General on December 29, 2008, and filed his claim with the Clerk of the Court of Claims on the same date.

As set forth in the claim, the cause of action sounding in negligent maintenance accrued on June 16, 2007, the date that claimant fell at Marcy. Claimant therefore had 90 days from that date, until September 14, 2007, to timely serve either his Claim or Notice of Intention to File a Claim. As previously stated, however, claimant’s notice of intention was not served until November 13, 2007, 60 days late. Since the notice of intention was not timely served, it did not extend claimant’s time to serve and file his claim. As a result, the claim was not timely served and filed as required by Court of Claims Act § 10(3).

The service and filing requirements of the Court of Claims Act are jurisdictional prerequisites to the institution and maintenance of a claim against the State and therefore must be strictly construed (Finnerty v New York State Thruway Authority, 75 NY2d 721; Byrne v State of New York, 104 AD2d 782, lv denied 64 NY2d 607).

This Court may not cure or overlook defects in the time and/or manner of service and filing, assuming that such defenses are properly raised by the defendant either in its responsive pleading or by a motion to dismiss made prior to service of said responsive pleading, as required by Court of Claims Act § 11(c). In this case, since defendant properly raised the jurisdictional defect in this pre-answer motion, the cause of action alleging negligent maintenance must be dismissed.

The Court notes that in its moving papers defendant has not sought dismissal of the cause of action alleging medical malpractice in the treatment of claimant’s injuries allegedly suffered in this fall. Additionally, claimant, in his response to this motion (Item 3), did not address the negligent maintenance cause of action, but rather raised the continuous treatment doctrine (CPLR § 214-a) as a defense to defendant’s motion to dismiss. The continuous treatment doctrine, however, does not provide a defense to the motion seeking dismissal of the negligent maintenance cause of action, but only applies to the medical malpractice cause of action.

As a result, since the medical malpractice cause of action was not addressed in this motion, the only cause of action being dismissed herein for untimely service and filing is the negligent maintenance cause of action (claimant’s “First Cause of Action”).

Based upon the foregoing, therefore, it is

ORDERED, that Motion No. M-76301 is hereby GRANTED; and it is further

ORDERED, that the cause of action for negligent maintenance asserted in Claim No. 116259 is hereby dismissed; and it is further

ORDERED, that the cause of action for medical malpractice asserted in Claim No. 116259 survives and remains pending in this Court.


June 17, 2009
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims