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
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). 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.