New York State Court of Claims

New York State Court of Claims

PEARSON v. THE STATE OF NEW YORK, #2009-015-173, Claim No. 116121, Motion Nos. M-76204, M-76267


Synopsis


Defendant's motion to dismiss claim as untimely was granted. Claimant's motion to treat "Notice of Claim" as claim was denied.

Case Information

UID:
2009-015-173
Claimant(s):
JULIETTE PEARSON
Claimant short name:
PEARSON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
116121
Motion number(s):
M-76204, M-76267
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Sussman & WatkinsBy: Christopher D. Watkins, Esquire
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Dewey Lee, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 29, 2009
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant moves for dismissal of the instant claim as untimely and the claimant cross-moves to treat her notice of intention to file a claim as a claim pursuant to Court of Claims Act § 10 (8). The claim filed on November 25, 2008 and served on January 9, 2009 alleges the following:
"4. On November 28, 2006, plaintiff was handcuffed and arrested by New York State police officers at her place of employment at Camp LaGuardia in Chester, New York.

5. Following her arrest, plaintiff was taken into custody by Dutchess County Sheriff's Deputies, processed and held overnight at the Dutchess County Jail.

6. Plaintiff subsequently learned that the basis for her arrest was a bench warrant that had been issued without her knowledge based on her purported failure to pay a $155 ‛arrest surcharge' to Dutchess County in connection with her 1997 arrest in Dutchess County.

7. In fact, plaintiff had promptly paid the $155 surcharge in September 1997 while she was incarcerated by defendant's Department of Correctional Services (DOCS) at its Albion State Correctional Facility."

On January 31, 2007 the defendant received a document denominated as a "Verified Notice of Claim" purporting to assert claims against both the County of Dutchess and the State of New York in Supreme Court, Dutchess County. Both the cover letter which accompanied the Verified Notice of Claim and the copy of the envelope in which it was mailed indicate that it was served by overnight mail service. The defendant served an answer to the Verified Notice of Claim alleging, inter alia, lack of subject matter jurisdiction and a hearing was held on July 20, 2007 pursuant to General Municipal Law § 50-h.[1]

Defendant now moves for dismissal of the claim as untimely.

Court of Claims Act § 10 (3) sets forth the time limitations applicable to the instant claim as follows:
"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, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed within two years after the accrual of such claim."

“Because suits against the State are allowed only by the State’s waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed” (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]; see also Lyles v State of New York, 3 NY3d 396 [2004]; Long v State of New York, 7 NY3d 269, 276 [2006]; Lichtenstein v State of New York, 93 NY2d 911, 913 [1999]). Defendant established that the claim was served more than 90 days after it accrued and, assuming proper service of a notice of intention to file a claim, beyond the two-year period in which to serve the claim.

Claimant does not dispute that the claim was served beyond the limitation periods set forth in Court of Claims Act § 10 (3) but requests that her Verified Notice of Claim be treated as a claim pursuant to Court of Claims Act § 10 (8) (a). Court of Claims Act § 10 (8) (a) provides that no application to treat the notice of intention as a claim shall be granted unless:
"it is 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; the notice of intention was timely served, and contains facts sufficient to constitute a claim; and the granting of the application would not prejudice the defendant."

A notice of intention is required to be served in the same manner as a claim, either personally or by certified mail, return receipt requested (Court of Claims Act § 11 [a] [i]), and the law is clear that the State’s waiver of immunity under Section 8 of the Court of Claims Act is contingent upon claimant’s compliance with the specific conditions to suit set forth in article II of the Court of Claims Act (see Lepkowski v State of New York, 1 NY3d 201, 206 [2003]). Among the conditions set forth in article II are the manner of service requirements of Court of Claims Act § 11 (a) (i). As a result, a notice of intention which is not served upon the Attorney General in strict compliance with the manner of service requirements contained in Court of Claims Act § 11 (a) (i) may not support a motion to treat the notice of intention as a claim pursuant to Court of Claims Act § 10 (8) (Fulton v State of New York, 35 AD3d 977 [2006]).[2] In opposition to the claimant's motion the defendant established that the Verified Notice of Claim was improperly served by overnight mail service. Thus, even if this document could be considered a notice of intention to file a claim, it may not form the basis for a motion to treat the notice of intention as a claim pursuant to Court of Claims Act § 10 (8).

Moreover, there is a functional distinction between the notice of claim requirement of General Municipal Law § 50-e and provisions of the Court of Claims Act relating to a notice of intention to file a claim. A notice of claim is a condition precedent to suit under General Municipal Law § 50-e whereas the notice of intention provisions of the Court of Claims Act are permissive and serve to extend the claimant's time to serve and file a claim (compare General Municipal Law § 50-e and Court of Claims Act § 10; see also Gibson v Roswell Park Cancer Inst. Corp., 21 Misc 3d 638 [2008]). The Verified Notice of Claim at issue here related to a matter pending in the Supreme Court and the defendant treated it as such, raising the absence of subject matter jurisdiction as a defense and participating in a hearing held in Supreme Court pursuant to General Municipal Law § 50-h. Thus, rather than evincing an intent to file a claim in the Court of Claims, the Verified Notice of Claim served upon the defendant appeared to have been nothing more than an improper attempt to sue the State in the Supreme Court. Aside from the improper manner in which the Verified Notice of Claim was served, therefore, the document failed to apprise the defendant of the claimant's intention to file a claim in the Court of Claims. The Court finds, as a result, that the Verified Notice of Claim may not serve as a predicate for a motion pursuant to Court of Claims Act § 10 (8).[3]

Based on the foregoing, defendant's motion to dismiss the claim is granted and the claimant's motion to treat her Verified Notice of Claim as a claim is denied.


May 29, 2009
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:

Motion No. M-76204
  1. Notice of motion dated January 22, 2009;
  2. Affirmation of Dewey Lee dated January 22, 2009 with exhibit.



Motion No. M-76267


1. Notice of motion dated February 11, 2009;
  1. Affirmation of Christopher D. Watkins dated February 11, 2009 with exhibits;
  2. Affirmation of Dewey Lee dated February 20, 2009 with exhibits.



[1]. A notice of claim is a condition precedent to the commencement of an action or special proceeding against a public corporation as defined in the General Construction Law (see General Municipal Law § 50-e). It is therefore not clear why the defendant served an answer to the notice of claim.
[2]. The defect is waived, however, unless raised with particularity in either a pre-answer motion for dismissal or responsive pleading (Court of Claims Act § 11 [c]).
[3]. While the statutory time period in which to move for late claim relief pursuant to Court of Claims Act § 10 (6) has not yet expired, this relief was not requested (see A.F. v State of New York, 60 AD3d 1222 [2009]).