New York State Court of Claims

New York State Court of Claims

SANTIAGO v. THE STATE OF NEW YORK, #2009-032-122, Claim No. 109219, Motion No. M-76497


Synopsis



Case Information

UID:
2009-032-122
Claimant(s):
JOSE SANTIAGO
Claimant short name:
SANTIAGO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109219
Motion number(s):
M-76497
Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant’s attorney:
Jose Santiago, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo, NYS Attorney GeneralBy: Joseph F. Romani, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
May 21, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant brings a motion to dismiss Claim No. 109219 on the grounds that claimant has failed to timely file and serve his claim in accordance with the Court of Claims Act, and that claimant has failed to state a cause of action. Claimant opposes the motion, stating that he has complied with the Court of Claims Act and has set forth a cause of action in his claim. The Court agrees with claimant and, for the reasons set forth below, denies defendant’s motion to dismiss.

The underlying claim arises out of an incident that occurred on February 28, 2003. Claimant alleges to have sustained injuries after correction officers forced him to walk up and down stairs at the Chemung County Courthouse, despite pleas that he could not, for medical reasons, do the same. Claimant further alleges that, as a result of being forced to travel up and down said stairs, he fell and was caused to sustain injuries. Claimant attributes his injuries to the negligence of defendant. Defendant argues, however, that although claimant alleges negligence, the allegations in his claim actually constitute an intentional tort, which carries a shorter statute of limitations and renders his claim untimely.

Although claimant used the words “intentional” and “deliberate” in some of his allegations, the Notice of Intention to File a Claim, the Claim and the Amended Claim he filed and served are replete with allegations of negligence. He gives numerous examples of how he believes the defendant acted negligently, from stating that defendant was negligent in failing to protect him from foreseeable harm and injuries, and failing to remove his leg iron restraints before escorting him on the stairs, to being distracted while escorting claimant up the stairs and causing claimant to fall and sustain injury. He further alleges that medical personnel acting as agents of the defendant failed and neglected to properly inform the correction security staff escorts of his medical impediments and incapacities, which, had they done so, would have prevented the injuries he sustained.

It is simply not clear from the facts now before the Court that this claim is strictly an intentional tort. As such, this Court finds that Court of Claims Act § 10 (3) is applicable here.

Court of Claims Act § 10 (3) states, in pertinent part, that a claim to recover damages 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 and served upon the attorney general within two years after the accrual of such claim. Court of Claims Act § 11 (a) specifies the proper manner of service for a claim and notice of intention, including personal service or certified mail, return receipt requested, upon the attorney general. Compliance with the filing and service requirements contained in sections 10 and 11 of the Court of Claims Act is a jurisdictional prerequisite to bringing and maintaining an action in the Court of Claims (Buckles v State of New York, 221 NY 418 [1917]), and failure to comply constitutes a fatal jurisdictional defect requiring dismissal (Thomas v State of New York, 144 AD2d 882, [3d Dept 1988]; Byrne v State of New York, 104 AD2d 782 [2d Dept 1984]).

In the present case, the Albany office of the Attorney General received, by certified mail, return receipt requested, a Notice of Intention to File a Claim on March 14, 2003, a Claim on April 19, 2004, and an Amended Claim on May 14, 2004 (see Defendant’s Affirmation, dated April 2, 2009). Since the subject incident occurred on February 28, 2003 and claimant served a Notice of Intention upon defendant within ninety days thereafter (specifically, on March 14, 2003), he was required to serve a Claim on or before February 28, 2005. Since claimant served his Claim on April 19, 2004, and his Amended Claim on May 14, 2004, both well within the required time frame, this Court finds that claimant has timely filed and served his Claim.
This Court further finds that claimant has set forth a cause of action. It is well-settled that the court's function on a motion to dismiss is to determine whether the claimant possesses a cause of action, not simply whether he has stated one. Toward that end, the court must "[a]ccept the facts as alleged in the complaint as true, accord [claimant] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory [citations omitted]." (Leon v Martinez, 84 NY2d 83, 87-88 [1994]). This is the case however imperfectly, informally or illogically the facts set forth in the claim may be pled. (See Condon v Associated Hosp. Serv., 287 NY 411 [1942]; Guggenheimer v Ginzburg, 43 NY2d 268 [1977]).
To establish a prima facie case of negligence, the following elements must exist: (1) that defendant owed the claimant a duty of care; (2) that defendant failed to exercise proper care in the performance of that duty; (3) that the breach of the duty was a proximate cause of claimant’s injury; and (4) that such injury was foreseeable under the circumstances by a person of ordinary prudence (Ritchie v State of New York, Court of Claims, March 5, 2008, UID #2008-030-513, Claim No. 114601, Motion No. M-74482, Scuccimarra, J.).
In the present case, claimant has alleged that the defendant owed him a duty of care, that the defendant failed to exercise proper care in that duty, that the failure to exercise that proper care resulted in the injuries he sustained, and that the injury was reasonably foreseeable. Accordingly, this Court finds that claimant has set forth a cause of action.
In light of the foregoing, defendant’s motion to dismiss Claim No. 109219 is denied.
May 21, 2009
Albany, New York
HON. JUDITH A. HARD
Judge of the Court of Claims
Papers Considered:
1. Notice of Motion and Affirmation of Joseph F. Romani, AAG, dated April 2, 2009, with Exhibits A - F;
2. Claimant’s Answer and Opposition to the Motion to Dismiss, dated April 8, 2009.