New York State Court of Claims

New York State Court of Claims

THOMAS v. THE STATE OF NEW YORK, #2009-030-514, Claim No. 113367, Motion No. M-76081


Synopsis


Claim dismissed. Although notice of intention timely served by proper means, did not substantially comply with Court of Claims Act §11(b) as to nature of the claim. NI speaks of violation of smoking policy at correctional facility, while claim itself alleges personal injury and constitutional infirmities due to asbestos and led paint removal in mess hall. Because notice of intention inadequate as to the time, location and nature of the claim ultimately served and filed, such claim was untimely served well after it allegedly accrued. Defense preserved with particularity

Case Information

UID:
2009-030-514
Claimant(s):
BERNARD THOMAS
Claimant short name:
THOMAS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113367
Motion number(s):
M-76081
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
BERNARD THOMAS, 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:
March 11, 2009
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers were read and considered on defendant’s motion:

1,2 Notice of Motion; Affirmation in Support of Motion to Dismiss by Elyse J. Angelico, Assistant Attorney General and attached exhibits


3,4 Filed papers: Claim, Answer

No Opposition filed

Bernard Thomas alleges in his claim that while he was incarcerated at Sing Sing Correctional Facility he saw asbestos and lead paint being removed in the mess hall on or about September 11, 2006, yet the mess hall was kept open for the three daily meals served to inmates. He alleges generally that this activity violates the state constitution, the eighth amendment to the federal constitution, the Americans with Disabilities Act, and placed his health at risk. He seeks damages in the amount of $5,000,000.00. He does not indicate in the claim itself, or in subsequent papers filed with the court,[1] what personal injuries he alleges have been suffered.

Defendant moves for dismissal of the claim on several grounds. First, it is asserted that the court lacks personal jurisdiction in that the claim was not served upon defendant within ninety (90) days of accrual as required. Defendant also argues that the claim fails to state a cause of action. Finally, defendant seeks dismissal based upon the court’s asserted lack of subject matter jurisdiction.

Mr. Thomas has not opposed the present motion, although duly served with it on December 31, 2008. [See Affidavit of Service, sworn to December 31, 2008].

With regard to the asserted lack of personal jurisdiction, in its answer the defendant included a Twelfth Affirmative Defense asserting that the claim was not timely served within ninety (90) days of its stated accrual on September 11, 2006, having been served on the Office of the Attorney General on March 2, 2007. [Affirmation in Support of Motion to Dismiss, ¶2]. Defendant also notes in its answer that it received what purported to be a notice of intention to file a claim on November 13, 2006 which, premised upon the asserted date of accrual, would be timely if it were adequate. The answer describes the notice of intention as “address[ing] Sing Sing Correctional Facility’s smoking policy, and not the subject of this claim which is asbestos exposure . . . ” [See Verified Answer, ¶¶3 and 15].

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 . . . ” A notice of intention is not a pleading per se [see Sega v State of New York, 246 AD2d 753 (3d Dept 1998) app den 92 NY2d 805 (1998)] , but rather serves the multiple function of alerting the defendant as to its need to investigate the matters described in the notice, and of affording a claimant an additional period in which to serve and file his claim. Presumably, when defendant receives the notice of intention it is reviewed, docketed and - having been alerted to the likelihood of a claim - the defendant expects service of same at some time within the time constraints suggested by whatever causes of action are implied by the information asserted in the notice. A theory of liability may be investigated and inferred on that basis.

While a notice of intention 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 what causes of action will be asserted and whether any subsequently served and filed claim is timely.

A copy of Mr. Thomas’ notice of intention was attached to the claim he filed in the Office of the Chief Clerk of the Court of Claims. [See Claim No. 113367]. It provides that the
“time and place where my claim arose and the nature thereof are as follows: September/06 All the state correctional officers and officers at Sing Sing Corr. Fac. are violating the State and Federal smoking policy and procedure Clear Air Act . . . etc. . . . violation of the State/federal 8th Eighth Amendment to the U.S. Con’t the Americans with Disabilities Act (ADA), 42 U.S.C. 12131 et seq. and the Rehabilitation Act, 29 USC 794. Violation of my present and future Health which my health is at Risk . . . by the State officials at Sing Sing Corr. Fac . . .” (sic).


This document is acknowledged as having been received in the Attorney General’s Office on November 13, 2006, and was served by certified mail, return receipt requested: within ninety (90) days of September 11, 2006.

This document does not, however, substantially comply with the requirements for the contents of a notice of intention, at least with respect to the claim that is now at issue concerning exposure to asbestos and lead paint. In this notice of intention, there is no date or location beyond the general indication that the claim arose in Sing Sing Correctional Facility. The only factual allegation is to the effect that officers were violating smoking policies, causing risks to claimant’s health.

Based on the foregoing, the notice of intention did not sufficiently inform the defendant of the time, location and nature of any claim concerning asbestos and lead paint removal from the mess hall at Sing Sing on September 11, 2006. Since the notice of intention was inadequate, it did not operate to extend the time within which claimant could serve and file a claim concerning such matters beyond ninety (90) days of accrual. The present claim - served on March 2, 2007 as stated above - was untimely. The defense is preserved with particularity in defendant’s answer as required. Court of Claims Act §11(c).

Defendant’s motion to dismiss the claim is hereby granted. The court does not reach the other grounds raised on the motion.

March 11, 2009
White Plains, New York

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




[1]. Previous motion decisions: Thomas v State of New York, UID # 2008-030-576, Claim No 113367, M-75592 (Scuccimarra, J., November 14, 2008); Thomas v State of New York, UID # 2008-030-577,Claim No 113367, M-75593 (Scuccimarra, J., November 14, 2008); Thomas v State of New York, UID # 2007-030-570, Claim No. 113367, M-73764 (Scuccimarra, J., October 1, 2007).