Defendant's motion to dismiss the claim for improper service was granted, and claimant's cross-motion to treat his Notice of Intention as a Claim was denied.
|Claimant(s):||BARTRAM YIHNI DABNEY|
|Claimant short name:||DABNEY|
|Footnote (claimant name) :||Although this claim was filed under the name of "Dalney", it appears from Department of Correctional Services records that claimant's actual last name is "Dabney", and this Court has therefore amended the caption of this claim accordingly.|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The Court, sua sponte, has also amended the caption to reflect the State of New York as the only proper defendant before this Court.|
|Judge:||NICHOLAS V. MIDEY JR.|
|Claimant's attorney:||BARTRAM YIHNI DABNEY, Pro Se|
|Defendant's attorney:||HON. ANDREW M. CUOMO
BY: Thomas M. Trace, Esq.,
|Third-party defendant's attorney:|
|Signature date:||December 15, 2009|
|See also (multicaptioned case)|
Defendant has brought this motion (M-76983) seeking an order dismissing the claim based upon improper service. Claimant has responded with a cross-motion (CM-77055) seeking permission to treat his previously served Notice of Intention to Serve and File a Claim as a claim, pursuant to Court of Claims Act § 10(8)(a).
The following papers were considered by the Court in connection with these motions:
Notice of Motion, Affirmation in Support, with Exhibits (M-76983) 1,2
"Notice of Motion Rebuttal to Dismiss Claim", with Exhibit (treated by the Court as Claimant's Cross-Motion) (CM-77055) 3
Letter Response to Cross-Motion, dated August 13, 2009, with Attachment 4
"Cross Motion" from Claimant (treated by the Court as a Sur-Reply to CM-77055)(3) 5
Letter request from claimant to compel disclosure, dated August 17, 2009 6
Filed Papers: Claim, Answer.
In this claim, claimant seeks to recover damages for personal injuries suffered by him when he was allegedly assaulted by employees of the Central New York Psychiatric Center, where he then resided. As set forth in his claim, the alleged assault occurred on July 20, 2006.
In his Affirmation in support of its motion to dismiss, defendant's attorney acknowledges that a notice of intention to serve and file a claim was served upon the Attorney General by certified mail, return receipt requested, on September 8, 2006. Defendant contends, however, that the claim itself was served upon the Attorney General by regular mail on November 21, 2006. Therefore, even though the notice of intention was properly and timely served, defendant seeks dismissal of the claim, contending that it was not properly served.
The Court finds that defendant has properly raised this jurisdictional defect in its Answer to the claim, as required by Court of Claims Act § 11(c) (see Answer, paras. 6 and 7).
Pursuant to Court of Claims Act § 10(3), 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 to serve and file a claim is served upon the Attorney General within such 90 day period. If a notice of intention is properly served upon the Attorney General within the 90 days following accrual, the claim must then be served and filed within two years from the date of accrual.
Pursuant to Court of Claims Act § 10(3-b), a claim based upon intentional tortious conduct against the State must similarly be served upon the Attorney General and filed with the Court of Claims within 90 days of accrual, unless a notice of intention is properly served upon the Attorney General within such 90 day period. If a notice of intention is properly and timely served, the claim for an intentional tort must then be served and filed within one year from the date of accrual.
As set forth in Court of Claims Act § 11(a), a claim must be served upon the Attorney General either personally or by certified mail, return receipt requested (Hodge v State of New York, 213 AD2d 766). These service requirements are jurisdictional prerequisites to the institution and maintenance of a claim, and as such must be strictly construed (Greenspan Bros. v State of New York, 122 AD2d 249). Service of a claim by ordinary, first class mail is not one of the methods of service authorized by Court of Claims Act § 11(a) (Turley v State of New York, 279 AD2d 819), and service of a claim which is not made in accordance with the provisions of § 11 is insufficient to confer jurisdiction over the State (Hodge v State of New York, supra; Philippe v State of New York, 248 AD2d 827).
As stated at the outset herein, defendant acknowledges that a notice of intention was timely and properly served upon the defendant within 90 days of accrual. Defendant's attorney, however, contends that the claim served by claimant on November 21, 2006 was not sent by certified mail, return receipt requested, but instead was sent by regular, first class mail, and that such service therefore renders the claim jurisdictionally defective. Defendant's attorney has attached a copy of the envelope in which the claim was mailed (Exhibit D to Items 1, 2), on which postage in the amount of $.39 is affixed. This amount of postage is obviously less than the amount required for certified mail, return receipt requested service. There are no other markings on the envelope to indicate that the claim was sent by certified mail, return receipt requested, as required by statute.
Based on the foregoing, therefore, the Court must find that claimant failed to serve his claim upon the Attorney General by certified mail, return receipt requested, and that his service of the claim upon the Attorney General by regular, first class mail is not a method of service authorized by Court of Claims Act § 11. As a result, this Court lacks jurisdiction over the claim, and it must be dismissed.
Apparently realizing that his claim was not properly served, claimant has responded with a cross-motion requesting that this Court deem his timely and properly served notice of intention as his claim pursuant to Court of Claims Act § 10(8)(a).
Section 10(8)(a) grants the Court authority to treat a notice of intention as a claim under certain circumstances. Any application to do so, however, must be "made upon motion before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules".
In this particular matter, it appears from the Court's reading of the claim that this action is based upon the intentional torts of assault and battery which allegedly occurred on July 20, 2006. Pursuant to CPLR § 215, the statute of limitations for an intentional tort is one year.
Claimant, however, has also apparently alleged a cause of action in his claim based upon an alleged failure of the defendant to adequately train its employees, an unintentional tort. Pursuant to CPLR § 214, the statute of limitations based upon negligence is three years.
In any event, whether claimant has alleged causes of action based upon an intentional tort or negligence, the most expansive statute of limitations available is three years. In this case, since his cause of action accrued on July 20, 2006, and his cross-motion was not filed until August 7, 2009, claimant has failed to timely make application under Court of Claims Act § 10(8)(a). As a result, claimant's motion for permission to treat the notice of intention as a claim must be denied.
Finally, since this claim must be dismissed and claimant's request to treat his notice of intention as a claim must also be denied, claimant's letter request to the Court to compel disclosure (Item 6) has been rendered moot.
Based on the foregoing, therefore, it is
ORDERED, that Motion No. M-76983 is hereby GRANTED; and it is further
ORDERED, that Cross-Motion No. CM-77055 is hereby DENIED; and it is further
ORDERED, that Claim No. 112967 is hereby DISMISSED.
December 15, 2009
Syracuse, New York
NICHOLAS V. MIDEY JR.
Judge of the Court of Claims
3. These papers were not filed with the Clerk of the Court of Claims, but rather were mailed directly by claimant to the Court. The Court has nevertheless considered these papers in reaching its decision on this motion and cross-motion.