New York State Court of Claims

New York State Court of Claims

DeLEON v. STATE OF NEW YORK, #2009-039-111, Claim No. 113633 , Motion No. M-75668


Synopsis



Case Information

UID:
2009-039-111
Claimant(s):
PEDRO DeLEON
Claimant short name:
DeLEON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113633
Motion number(s):
M-75668
Cross-motion number(s):

Judge:
James H. Ferreira
Claimant’s attorney:
Pedro DeLeon, pro se
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Paul F. CaginoAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 4, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant alleges that he sustained injuries as a result of defendant’s failure to provide him with a proper apparatus for ascending and descending his bunk bed, as well as defendant’s failure to provide him with adequate medical care. On January 6, 2006, defendant received a copy of claimant’s notice of intention to file a claim (hereinafter notice of intention) which was sent by regular mail. On January 11, 2006, defendant received a second identical copy of claimant’s notice of intention which was sent by certified mail, return receipt requested.

Both copies of the notice of intention state, in relevant part, that

“[t]he claim arose on November 20, 2005 at 2:am [sic] when the following event occurred: Claimant was laying on top of double bunk bed when he fell off of the bunk into another cubicle area.


The items or injuries claimed are as follows: Due to his falling off the bunk bed claimant received extensive injuries to his back, shoulder, ankle and right leg, claimant is receiving extensive physical therapy due to his injuries.”


Thereafter, on April 26, 2007, defendant received a copy of the claim by certified mail, return receipt requested. The claim includes multiple numbered paragraphs containing, among other things, allegations that defendant failed to properly diagnose claimant’s lung and sinus conditions, failed to provide claimant with adequate medical care, and was negligent in failing to place claimant in a lower bunk.

Issue was joined during May 2007 by service and filing of defendant’s Verified Answer. Defendant asserts therein, among other things, that “this Court lacks subject matter jurisdiction over the claim and personal jurisdiction over the defendant . . . as the claim is untimely in that neither the claim nor a notice of intention was served within ninety (90) days of the accrual of the claim as required by Court of Claims Act Sections 10 (3) and 11.” Defendant further asserts that “the notice of intention is defective, it is a nullity and did not serve to extend the time of filing a claim pursuant to § 10 (3) of The Court of Claims Act.”

Defendant now moves the Court for an order dismissing the claim pursuant to CPLR 3211 (a) (2), (5), (7) and (8), and Court of Claims Act §§ 10 and 11. More specifically, defendant asserts that the notice of intention does not comply with the notice provisions of Court of Claims Act §§ 10 and 11 in that claimant does not set forth any grounds for negligence or any other cause of action and, therefore, the claim is untimely and should be dismissed. Defendant further avers that the claim should be dismissed because it contains allegations of negligence and medical malpractice that occurred more than 90 days prior to its receipt of the claim, as well as allegations and causes of action that were never raised in the notice of intention. The motion is unopposed.

Court of Claims Act §10 (3) provides, in relevant part, that a claim must 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.” It is well settled that “ ‘the requirements of the Court of Claims Act as to the filing of claims must be strictly construed because the question of timeliness of filing is jurisdictional’ ” (Pristell v State of New York, 40 AD3d 1198, 1198 [2007], quoting Roberts v State of New York, 11 AD3d 1000, 1001 [2004]; see also Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]).

Court of Claims Act § 11 (b) provides, in relevant part, that, like the claim, the notice of intention “shall state the time when and place where such claim arose, [and] the nature of same.”

It is well settled that “all of the requirements in section 11 (b) are ‘substantive conditions upon the State's waiver of sovereign immunity’ ” (Kolnacki v State of New York, 8 NY3d 277, 280-281 [2007], quoting Lepkowski v State of New York, 1 NY3d 201, 207 [2003]), and that “nothing less than strict compliance with the jurisdictional requirements of the Court of Claims Act is necessary” (Kolnacki v State of New York, supra at 281). “The failure to satisfy any of the conditions is a jurisdictional defect” (id.). Moreover, “[w]hile section 11 (b) does not require ‘absolute exactness,’ a claim must set forth the nature of the claim and the time and place where it arose” (Triani v State of New York, 44 AD3d 1032 [2007], quoting Grumet v State of New York, 256 AD2d 441, 442 [1998]). “It must do so with ‘sufficient definiteness to enable the State to be able to investigate the claim promptly and to ascertain its liability under the circumstances’ ” (Triani v State of New York, supra, quoting Grumet v State of New York, supra) (citations omitted).

Here, “the notice of intention to file a claim only stated that the claimant . . . fell without any indication as to what allegedly caused him to . . . fall” (Grumet v State of New York, supra). Thus, the notice of intention does not sufficiently provide defendant with notice of the nature of his claim thereby “extending to two (2) years from accrual the date within which the claimant could serve and file his actual claim” (McMillan v State of New York, Claim No. 115421, M-75501, CM-75694, UID No. 2008-030-579 [Scuccimarra, J.]). Moreover, since the claim was not served upon defendant within 90 days after its accrual, and claimant does not seek leave to file a late claim, the Court is constrained to find that it is without jurisdiction of the claim.

Accordingly, it is hereby ORDERED that M-75668 is granted and the claim is dismissed.


February 4, 2009
Albany, New York

HON. JAMES H. FERREIRA
Judge of the Court of Claims


Papers Considered
:
  1. Notice of Motion to Dismiss dated October 7, 2008; and
  2. Affirmation in Support of Motion to Dismiss by Paul F. Cagino, AAG, dated October 7, 2008 with exhibits.