New York State Court of Claims

New York State Court of Claims

VAN STUYVESANT v. THE STATE OF NEW YORK, #2009-030-525, Claim No. 116397, Motion Nos. M-76367, CM-76441


Synopsis


Motion by inmate proceeding pro se to strike defenses denied. Motion by defendant to dismiss granted. Notice of intention and claim both served by regular mail. Jurisdictional defense preserved with particularity in answer.

Case Information

UID:
2009-030-525
Claimant(s):
CURTIS VAN STUYVESANT
Claimant short name:
VAN STUYVESANT
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
116397
Motion number(s):
M-76367
Cross-motion number(s):
CM-76441
Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
CURTIS VAN STUYVESANT, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: JEANE L. STRICKLAND SMITH, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
April 27, 2009
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers were read and considered on claimant’s motion to strike the


defenses raised herein and on defendant’s cross-motion to dismiss:

1,2 Notice of Motion; Verified Affidavit in Support of Notice of Motion Pursuant to CPLR 3024, 3211 (b) by Curtis Van Stuyvesant, Claimant and attached papers

3,4 Notice of Cross-Motion; Affirmation in Support of Cross-Motion to Dismiss by Jeane L. Strickland Smith, Assistant Attorney General and attached exhibits

5,6 Filed papers: claim, answer

Curtis Van Stuyvesant alleges in his claim that defendant’s agents at various correctional facilities failed to provide him with timely and adequate medical care. More specifically, he alleges that between 2002 and 2006 he was erroneously given treatment for prostate cancer. Claimant discovered he did not have prostate cancer in 2008. He also alleges that following emergency surgery in July 2007 for an unrelated illness, he was provided with inadequate follow-up care.

In its answer, in addition to general denials, defendant asserts three affirmative defenses, including the first affirmative defense asserting a lack of jurisdiction premised on claimant’s failure to timely serve and file the claim by the proper means.

A notice of intention to file a claim was served by regular mail on the Attorney General’s Office on December 1, 2008. [Affirmation by Jeane L. Strickland Smith, ¶3, Exhibit 2]. The claim itself was served on the Attorney General’s Office by regular mail on December 24, 2008. [Ibid. ¶4, Exhibit 3].

A defense is raised in an answer to provide adequate notice to the claimant of issues of law or fact that the defendant may raise at trial or in later motion practice. Cipriano v City of New York, 96 AD2d 817 (2d Dept 1983). Indeed, Civil Practice Law and Rules §3018(b), concerning responsive pleadings, provides in pertinent part that a
“. . . party shall plead all matters which if not pleaded would be likely to take the adverse party by surprise or would raise issues of fact not appearing on the face of a prior pleading such as . . . collateral estoppel, culpable conduct . . . or statute of limitation. The application of this subdivision shall not be confined to the instances enumerated.”


A motion to dismiss such defenses may be made on the ground that “. . . a defense is not stated or has no merit.” Civil Practice Law and Rules §3211(b). Claimant, in the illegible, handwritten motion submitted, has not shown how the defenses asserted in the answer lack merit or are otherwise deficient. More significantly, however, defendant’s cross-motion to dismiss the claim is granted, rendering claimant’s motion to strike such defenses moot.

Court of Claims Act §11(a) provides that the 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; and that 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 inadequate medical care must be served on defendant within ninety (90) days of its accrual. 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.

It is the claimant who 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).

Claimant served both a notice of intention to file a claim and a claim by regular mail, and has thus failed to establish proper service by the required means. The defense is preserved with particularity in defendant’s answer as required. Court of Claims Act §11(c). Since claimant has not established that he served the claim upon the Attorney General as required, and the defendant has raised the jurisdictional issue in this timely motion, the cross-motion [CM-76441] is granted, and Claim Number 116397 is dismissed in its entirety.

April 27, 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) with 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.”