New York State Court of Claims

New York State Court of Claims

DIXON v. THE STATE OF NEW YORK, #2009-032-130, Claim No. 116099, Motion Nos. M-76139, M-76170


Synopsis



Case Information

UID:
2009-032-130
Claimant(s):
RONNIE DIXON
Claimant short name:
DIXON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
116099
Motion number(s):
M-76139, M-76170
Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant’s attorney:
Arnold E. DiJoseph, III, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo, NYS Attorney GeneralBy: Michael T. Krenrich, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
June 30, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant brings a motion to dismiss Claim No. 116099 on the ground that claimant has failed to timely serve a verified notice of intention to file a claim or a verified claim in accordance with the Court of Claims Act. Claimant opposes the motion to dismiss, and moves for leave to file a late claim[1]. For the reasons set forth herein, the Court grants defendant’s motion to dismiss and denies claimant’s application seeking leave to file a late claim.
MOTION TO DISMISS (M-76139)
The underlying claim alleges that claimant was unlawfully imprisoned from May 2, 2005 through May 2, 2007, and from September 4, 2007 through September 19, 2008, as a result of the unlawful imposition of post-release supervision (PRS) by the Department of Corrections.

Defendant was served with the subject claim on December 15, 2008, and rejected it by letter dated December 16, 2008, noting that it was being returned, because it was unverified. Defendant asserts that the claim was, therefore, treated as nullity, in accordance with CPLR 3022, which provides that where a pleading is served without sufficient verification, it may be treated as a nullity, provided the recipient party gives notice with due diligence to the attorney of the adverse party that he elects to do so. Defendant alleges that in an attempt to correct the defective claim, claimant served defendant, on January 12, 2009, with a duplicate claim that included a verification (Krenrich Affirmation in Support of Motion to Dismiss, ¶ 8). It is Defendant’s position that since the verified claim was served more than 90 days after the accrual of the cause of action, and, further, that it was served by regular mail, rather than certified mail return receipt requested, it must be dismissed. The Court agrees.

Court of Claims Act § 10 (3) states, in pertinent part, that a claim to recover damages for personal injuries caused by the negligence, unintentional tort or intentional 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 for negligence and unintentional tort and within one year after the accrual of claims for intentional tort.

Court of Claims Act § 11 (a)(i) provides that the claim shall be filed with the clerk of the court, and a copy shall be served upon the attorney general within the times provided for filing with the clerk of the court. The claim and notice of intention to file a claim shall be verified in the same manner as a complaint in an action in the supreme court (Court of Claims Act § 11 [b]). Any objection or defense based upon the failure to comply with (i) the time limitations contained in section ten of the Court of Claims Act, (ii) the manner of service requirements, or (iii) the verification requirements 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 (Court of Claims Act § 11 [c]).

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, and failure to comply constitutes a fatal jurisdictional defect requiring dismissal (Buckles v State of New York, 221 NY 418 [1917]; Thomas v State of New York, 144 AD2d 882 [3d Dept 1988]; Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]; Matter of Dreger v New York State Thruway Auth., 177 AD2d 762 [3d Dept 1991], affd 81 NY2d 721 [1992]; Suarez v State of New York, 193 AD2d 1037 [3d Dept 1993]).

In the present case, the claim is alleged to have accrued on May 2, 2007 and September 19, 2008. Accordingly, claimant should have served a verified claim or a verified notice of intention to file a claim by certified mail return receipt requested, on or before July 31, 2007 and December 18, 2008. Because claimant did not serve a verified claim or a verified notice of intention to file a claim in said manner on or before said dates, he has failed to comply with sections 10 and 11 of the Court of Claims Act. This failure constitutes a fatal jurisdictional defect warranting the dismissal of the claim (see Suarez v State of New York, 193 AD2d 1037 [3d Dept 1993]).

Accordingly, defendant’s motion to dismiss is granted and Claim No. 116099 is dismissed.
MOTION SEEKING PERMISSION TO FILE A LATE CLAIM (M-76170)
The Court of Claims is vested with broad discretion to grant or deny an application for permission to file a late claim (Matter of Gonzalez v State of New York, 299 AD2d 675 [3d Dept 2002]). In making a determination to grant or deny such an application, the Court must first determine whether the claim would be timely, in accordance with article two of the civil practice law and rules, if asserted against a citizen of the state (Court of Claims Act §10[6]). It must then consider the following statutory factors: (1) whether the delay in filing the claim was excusable; (2) whether the state had notice of the essential facts constituting the claim; (3) whether the state had an opportunity to investigate the circumstances underlying the claim; (4) whether the state was substantially prejudiced; (5) whether the claimant has any other available remedy; and (6) whether the claim appears to be meritorious (Court of Claims Act §10[6]). The presence or absence of any one of said factors is not dispositive (Bay Terrace Coop. Section IV v New York State Employees’ Retirement Sys. Policemen’s and Firemen’s Retirement Sys., 55 NY2d 979 [1982]). However, the last factor is the most decisive inasmuch as it is futile to proceed with a meritless claim even if the other factors support the granting of the claimant’s application (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]; Prusack v State of New York, 117 AD2d 729 [2d Dept 1986]).

This Court is unable to determine, from the facts set forth in the proposed claim and the documents submitted in support of claimant’s motion, whether the claim would be timely, either in whole or in part, if asserted against a citizen of the state. Although the proposed claim alleges negligence (for “the unlawful imposition of post release supervision”), which carries a three year statute of limitations (CPLR §214[5]), it sets forth facts which may constitute a cause of action for the intentional tort of false imprisonment, which carries a one year statute of limitations (CPLR § 215[3]). In classifying a cause of action for statute of limitations purposes, the controlling consideration is the nature and substance of the cause of action, not the form in which it is stated (see Rutzinger v Lewis, 302 AD2d 653 [3d Dept 2003]; Locke v North Gateway Restaurant, Inc., 233 AD2d 578 [3d Dept 1996]). Without additional information, the Court is unable to determine the nature and the substance of the claim and, therefore, the applicable statute of limitations, in order to assess whether the claim would be timely if asserted against a citizen of the state.

In addition, the Court is unable determine whether the proposed claim appears to be meritorious. The proposed claim fails to set forth essential information, including, but not limited to, what the underlying crime was, when claimant was sentenced, what the sentence was for, when claimant was released, when the PRS was allegedly unlawfully imposed, and when the PRS which was allegedly unlawfully imposed expired or would have expired. The proposed claim further fails to attach significant supporting documents, such as the sentencing minutes, commitment order and indictment. (The proposed claim indicates that an indictment is annexed, but it is not). Without said information, the Court cannot determine whether a court would have been obligated to impose a term of PRS and if so, whether some of the time claimant served under PRS was caused solely by DOCS’ imposition of a longer term of PRS than a court would have imposed, which would enable this Court to determine whether the proposed claim has merit (see Mickens v State of New York, Ct Cl, Claim No. 114719, Motion Nos. M-75311,
CM-75564, May 18, 2009, Hard, J. [UID
#2009-032-114]).
Accordingly, although this Court may be in a position to find that the state had notice of the essential facts constituting the claim, that the state had an opportunity to investigate the circumstances underlying the claim, that the state was not substantially prejudiced by the delay, and that claimant did not have any other available remedy; it is simply unable to determine whether the claim has merit, which is the most decisive factor. Therefore, even if a like claim would be timely against a citizen of the state, the fact that this Court cannot determine whether there is a meritorious cause of action, coupled with claimant’s failure to offer an excusable reason for his delay, requires denial of the motion seeking leave to file a late claim.
Based upon the foregoing, claimant’s motion is denied.
June 30, 2009
Albany, New York
HON. JUDITH A. HARD
Judge of the Court of Claims
Papers Considered:
M-76139
1. Notice of Motion to Dismiss and Affirmation of Michael E. Krenrich, AAG, dated January 20, 2009 with Exhibits;
2. Affirmation in Opposition of Arnold E. DiJoseph, III, dated February 9, 2009 with Exhibit.
Filed Papers: Claim
M-76170
1. Notice of Motion and Affirmation of Arnold E. DiJoseph, III, Esq., dated January 23, 2009 with Exhibit and Affidavit of Claimant;
2. Affirmation in Opposition of Michael E. Krenrich, AAG, dated February 4, 2009 with Exhibits;
3. Reply Affirmation of Arnold E. DiJoseph, III, Esq., dated February 25, 2009.

[1]. The Court notes that the Court of Claims Act does not provide for the filing of a late “notice of claim.” Accordingly, while claimant seeks leave to file a late notice of claim, the Court considers the application to be one seeking leave to file a late claim, made pursuant to Court of Claims Act § 10(6).