New York State Court of Claims

New York State Court of Claims

RIVERA v. THE STATE OF NEW YORK, #2009-015-182, Claim No. 116303, Motion No. M-76316


Synopsis


Motion to dismiss claim based upon improper service of the notice of intention was denied where timeliness of the claim was not addressed in the motion.

Case Information

UID:
2009-015-182
Claimant(s):
RAUL RIVERA
1 1.The caption of this claim is amended sua sponte to reflect the only properly named defendant.
Claimant short name:
RIVERA
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption of this claim is amended sua sponte to reflect the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
116303
Motion number(s):
M-76316
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Raul Rivera, Pro SeNo Appearance
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Michele M. Walls, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 30, 2009
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Defendant moves for dismissal of the instant claim pursuant to CPLR 3211 (a) (2) and (8) on the grounds that the Court lacks both subject matter jurisdiction of the claim and personal jurisdiction over the defendant due to improper service of the notice of intention to file the claim. Claimant, an inmate proceeding pro se, served a notice of intention to file a claim which was received by the Attorney General on October 29, 2008. A claim was thereafter filed with the Court on January 13, 2009 and served upon the Attorney General by certified mail, return receipt requested, on January 16, 2009 (defendant's Exhibit B). The claim states, in pertinent part, the following:
"2. This claim arises from the acts or ommission of the defendant (s) Detail of said acts or omission are as follows. medical malpractice and medical neglect for denial the treatment to plaintiffs medical condition for back pain this is in violation of n.y.const art 1.25 cruel an unusual punishment.

3. When plaintiff were being treated for his condition Great Meadow medical staff was make a false report in plaintiff medical record that say Rivera sale his medication for he back pain . . .

5. This claim accruel on the 3 day of December 2008 and has being ongoing event since the day of its accrued."[2]

Defense counsel asserts that the Court lacks subject matter jurisdiction of the claim and personal jurisdiction over the defendant in that the notice of intention was served by regular mail and not personally or by certified mail, return receipt requested, as prescribed by Court of Claims Act § 11(a).

Court of Claims Act § 11(a) (i) requires that the claim be filed with the clerk of the court and that “a copy shall be served upon the attorney general . . . either personally or by certified mail, return receipt requested . . . Any notice of intention shall be similarly served upon the attorney general within the times hereinbefore provided for service upon the attorney general."

The sole basis for the dismissal motion is the alleged improper service of the notice of intention to file the claim. In support of this contention, defendant submitted the envelope in which the notice of intention was mailed which establishes that service was not accomplished in accordance with the requirements of Court of Claims Act § 11 (a) (i). Notwithstanding this fact, however, defendant does not contend that service of the claim was improper or untimely (see defense counsel's Affirmation In Support, ¶ 7). Inasmuch as service of a notice of intention is not a condition precedent to the commencement of an action in the Court of Claims (compare General Municipal Law § 50-i), dismissal of the claim would not be appropriate absent any contention that the claim was improperly served or untimely. Notably, the accrual date set forth in the claim is December 3, 2008[3] and the claimant alleges that the negligence of the defendant has been "ongoing". Thus, while the service of a notice of intention by regular mail is invalid (see Fulton v State of New York, 35 AD3d 977 [2006], lv denied 8 NY3d 809 [2007]), the defendant has failed to address the timeliness of the claim itself, notwithstanding the claimant's failure to properly serve the notice of intention, requiring denial of the motion.

Accordingly, the defendant's motion is denied.



June 30, 2009
Saratoga Springs, New York

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


The Court considered the following papers:
  1. Notice of motion dated February 11, 2009;
  2. Affirmation of Michele M. Walls dated February 11, 2009 with exhibits.

[2]. Errors in the original.
[3].The notice of intention to file a claim states an accrual date of September 10, 2008.