New York State Court of Claims

New York State Court of Claims

BOOKER v. THE STATE OF NEW YORK, #2009-030-021, Claim No. 115880


Synopsis


Claim dismissed on oral motion reserved on at trial. Claimant given three weeks to establish claim served on Attorney General but failed to do so. Motion to treat notice of intention as a claim denied. If notice of intention otherwise adequate, still time to serve and file claim. If not adequate, still time to serve and file late claim motion.

Case Information

UID:
2009-030-021
Claimant(s):
AMIN BOOKER
Claimant short name:
BOOKER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115880
Motion number(s):

Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
AMIN BOOKER, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: ELYSE J. ANGELICO, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
July 28, 2009
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Amin Booker, an inmate proceeding pro se, alleges in his claim that defendant’s agents


at Green Haven Correctional Facility failed to provide him with adequate medical care after


injuries to his right ankle suffered on May 24, 2008. Trial of the matter was to have been held on


June 12, 2009.

On that date the defendant orally moved to dismiss the claim asserting that the Attorney General’s Office had not been served with the claim as required by Court of Claims Act §11(a) resulting in a lack of subject matter jurisdiction. In support of the motion, counsel submitted an affidavit by Tasha Hunter-Tabron, a clerk in the Claims Bureau in the New York City Office of the Attorney General, charged with keeping track of documents served in litigation in the Court of Claims among other duties. [See Exhibit A]. From her review, it appears that the only document pertaining to this claim received by the Claims Bureau was a notice of intention to file a claim received on September 19, 2008 by certified mail, return receipt requested. The assistant attorney general making the dismissal motion noted that her office had received correspondence from the claimant regarding subpoenas in April 2009.

Claimant indicated that he thought he had served the claim by the proper means, and furnished a disbursement request form dated April 20, 2009, and a receipt for the cost of certified mail directed to the Attorney General’s Office dated September 17, 2008. He did not submit the green card showing that what he mailed on September 17, 2008 was received by the Attorney General’s Office. [Exhibits 1 and 2].

After some colloquy, claimant was given three (3) weeks to provide proof of service on the Attorney General of the claim by furnishing the court with the green card for certified mail, return receipt requested, showing that the claim was received, and defendant was given the same period to investigate as to what other than the notice of intention may have been received by its central office.

Defendant served and filed a Supplemental Affirmation affirmed on July 1, 2009, to which Claimant responded with an opposing Affirmation (sic) sworn to on July 9, 2009. Defendant indicates that a further search of the records revealed again that only a notice of intention to file a claim was received by the Office of the Attorney General on September 19, 2008 by certified mail, return receipt requested (and an original of same and the envelope in which it was mailed is attached to the original Supplemental Affirmation submitted for the Court’s review). [Supplemental Affirmation by Elyse J. Angelico, Assistant Attorney General, ¶3 and Exhibit A]. This original notice of intention contains two stamps indicating receipt by the Attorney General’s Office including September 19, 2008 and September 29, 2008, as well the Court’s stamp indicating receipt of the notice and its return to claimant on August 8, 2008 and August 12, 2008 respectively. [Id.]. Notices of intention have not been filed by the Clerk’s Office since 1995, and are returned when received.

By way of alternate relief, claimant asks that the notice of intention be treated as a claim pursuant to Court of Claims Act §10(8), or that he be allowed late claim relief pursuant to Court of Claims Act §10(6). Claimant also indicates that he has the green card and will produce it on a trial date, but does not provide the actual card as he had been directed to do, nor has he provided a photocopy. [Claimants Affirmation opposing Defendants Supplemental Affirmation, ¶2].

The Court has reviewed the file maintained by the Office of the Chief Clerk of the Court of Claims. No answer appears to have been served on the claimant, or filed in the Office of the Chief Clerk of the Court of Claims. The Clerk’s file contains correspondence concerning subpoenas that was received on April 22, 2009 that was copied to the Attorney General’s Office. The timing of that correspondence - the same received by the Assistant Attorney General as noted - seems to correlate with the disbursement request form claimant furnished showing a mailing to the Attorney General’s Office on April 20, 2009. [Exhibit 1]. An affidavit of service also filed with the claim indicates that a “notice of motion w/claim” was served by certified mail, return receipt requested on September 17, 2008, but does not indicate on whom such documents were served.

Additionally, in prior motion practice apparently sent somewhere at the same time (perhaps the “notice of motion w/claim” referred to in the affidavit of service), the court denied claimant’s motion for an order “granting monetary compensation,” noting that it was unclear whether the motion was served on anyone. [See Booker v State of New York, UID # 2008-030-578, Claim No. 115880, Motion No. M-75663 (Scuccimarra, J., November 26, 2008)]. There was no response to the motion by defendant. Such lack of response to the motion by the defendant would also suggest that they were not served.

Court of Claims Act §11(a) provides that a claim must be served personally or by certified mail, return receipt requested, upon the attorney general within the times prescribed in Court of Claims Act §10. Significantly, service is complete when it is received in the Attorney General’s Office. Court of Claims Act §11(a)(i). Court of Claims Act §10(3) requires that a claim alleging negligence or medical malpractice such as the one filed here be served and filed within ninety (90) days of its accrual, unless the claimant shall within such time serve a notice of intention to file a claim. A failure to serve the claim during the time period and in the manner required results in a lack of personal jurisdiction, unless the State has failed to properly plead jurisdictional defenses or raise them by motion. In that case, the defense is waived. Court of Claims Act §11(c).[1] Failure to serve the claim at all results in a lack of subject matter jurisdiction that is not waiveable.

The claimant has the burden of establishing proper service [Boudreau v Ivanov, 154 AD2d 638, 639 (2d Dept 1989)] by a preponderance of the evidence. See Maldonado v County of Suffolk, 229 AD2d 376 (2d Dept 1996). Regulations require that proof of service be filed with the Chief Clerk within ten (10) days of service on the defendant. 22 NYCRR § 206.5(a).

Based on the foregoing, it appears that the claim was never served by claimant on the Office of the Attorney General, although a timely notice of intention to file a claim was apparently served on that office by the proper means. As noted, no answer by the Attorney General was served or filed. This has been found to be “reflective of the failure to have served the claim.” [See Dunn v State of New York, UID # 2000-005-556, Claim No. 98551, Motion Nos. M-62308, 62310, CM-62324 (Corbett, J., September 20, 2000)]. There is no requirement that the Attorney General respond to the claimant when a notice of intention is served on his office as suggested by the claimant. [See Claimants Affirmation opposing Defendants Supplemental Affirmation, ¶5]. The Attorney General did not respond to a motion that was apparently filed in the Clerk’s Office at the same time as the alleged service of the claim, suggesting a lack of service as well.

Court of Claims Act §11(b) requires that a Notice of Intention “state the time when and place where such claim arose, [and] the nature of same . . .” The purpose of the Notice of Intention is to put the Defendant State on notice of potential suit against it, so that it may investigate the claim and infer a theory of liability. It also acts to extend the period within which a claim must be served and filed, provided it has been properly served and contains the required information. While it need not be scrutinized with the same attention as a pleading, it should nonetheless perform its notice function, as well as provide specific enough information to determine whether any subsequently served and filed claim is timely filed. In a medical malpractice claim, it would operate to extend the time within which a claim must be served and filed to two (2) years from accrual. Court of Claims §10(3).

Claimant’s requests for alternate relief are also denied. The notice of intention does not contain all the information necessary as to the required contents of a claim to serve as a claim under Court of Claims Act §§10(8) and 11-b. Indeed, the notice of intention does not contain a date of accrual, saying only generally that claimant injured his ankle “sometime in May 08" and that he thereafter did not receive care. The notice of intention is signed on July 23, 2008 (which is the date of accrual alleged in the filed claim).

While seeking late claim relief may be what is necessary at this juncture, since the notice of intention to file a claim that was served on defendant on September 19, 2008 (well within ninety (90) days of the claim’s asserted July 23, 2008 accrual date), does not appear to contain enough information to extend the period within which claimant could serve and file his claim, claimant has not provided the necessary information to obtain late claim relief in any event, including an expert medical affidavit as required for a claim of medical malpractice. See Court of Claims Act §10(6).

On the other hand, assuming the notice of intention is adequate, the time within which claimant may serve and file a claim based upon it would expire within two (2) years of its accrual as stated above. See Court of Claims Act §10(3).

More significantly, in terms of what is before the court for its consideration at this juncture, claimant has not established by a preponderance of the evidence that he served the claim at all upon the Attorney General as required by Court of Claims Act §11(a) and therefore this Court does not have subject matter jurisdiction over the claim.

Accordingly, defendant’s motion to dismiss, upon which decision had been reserved, is hereby granted, and Claim Number 115880 is dismissed.


July 28, 2009
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1]. “Any objection or defense based upon failure to comply with (i) the time limitations contained in section ten of this act, (ii) the manner of service requirements set forth in[11(a)], or (iii) the verification requirements as set forth in [11(b)] and [Civil Practice Law and Rules 3022] is waived unless raised, with particularity, either by a motion to dismiss made before service of the responsive pleading is required or in the responsive pleading, and if so waived the court shall not dismiss the claim for such failure.”