Pro se claim dismissed as improperly served; no jurisdiction over community college; and claim against State Police untimely.
|Claimant short name:||TYLICKI|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :||Caption amended to reflect the State of New York as the proper defendant.|
|Judge:||CHRISTOPHER J. MCCARTHY|
|Claimant's attorney:||Raymond Tylicki, Pro Se|
|Defendant's attorney:||ANDREW M. CUOMO
Attorney General of the State of New York
By: Paul F. Cagino, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||January 15, 2009|
|See also (multicaptioned case)|
For the reasons set forth below, the State's motion to dismiss the Claim is granted on the bases that: (1) it was improperly served upon Defendant; (2) the Court lacks jurisdiction over Clinton Community College; and (3) the cause of action alleging an assault by the State Police is untimely.
The Claim, which was filed with the Clerk of the Court on April 9, 2008 and served upon Defendant on May 1, 2008 (see Affirmation of Assistant Attorney General Paul F. Cagino, ¶ 3 and Ex. A attached to motion), alleges that since September 30, 2005 Claimant has been unlawfully suspended from attending Clinton Community College and that this resulted in an unconstitutional taking of his property rights. Claimant further asserts that on September 20, 2005, members of the New York State Police forcibly removed him from a classroom at Clinton Community College, then assaulted him and deprived him of a property right.
Defendant seeks dismissal of the Claim based upon Claimant's failure to properly serve the Claim upon the Attorney General in accordance with Court of Claims Act § 11(a). Court of Claims Act § 11(a)(i) provides that a copy of the claim be served personally or by certified mail, return receipt requested, upon the Attorney General within the applicable time period provided in Section 10 of the Court of Claims Act. Defense counsel asserts that Claimant served the Claim upon the Attorney General by certified mail only (Cagino Affirmation, ¶ 5). The failure to properly serve the Attorney General gives rise to a defect in jurisdiction which, if not raised with particularity, is subject to the waiver provisions of Court of Claims Act § 11(c) (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 723 ; Matter of Dreger v New York State Thruway Auth., 177 AD2d 762, 763 [3d Dept 1991], affd 81 NY2d 721 ; Suarez v State of New York, 193 AD2d 1037, 1038 [3d Dept 1993]).
Section 11 of the Court of Claims Act constitutes a jurisdictional prerequisite to the institution and maintenance of a claim against the State and, thus, must be strictly construed (Buckles v State of New York, 221 NY 418 ; Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]; Byrne v State of New York, 104 AD2d 782 [2d Dept 1984], lv denied 64 NY2d 607 ). The Court cannot waive a defect in jurisdiction that has been timely raised (Thomas v State of New York, 144 AD2d 882 [3d Dept 1988]). Defendant timely and properly raised with particularity as its fourteenth affirmative defense in its Answer (dated May 8, 2008) that the Claim was delivered by certified mail only, not certified mail, return receipt as required by Court of Claims Act § 11(a). In reviewing Exhibit A, which includes a photocopy of the envelope in which the Claim was purportedly mailed, the Court notes that the envelope appears to have affixed to it a portion of a certified mail sticker, but it does not indicate if return receipt had been requested. Moreover, Claimant failed to controvert Defendant's assertions or provide evidence that the Claim was properly served upon the State. Therefore, the Court concludes that the Defendant established that the Claim was improperly served upon Defendant.
The Court now turns to that portion of the State's motion which seeks to dismiss the cause of action asserting unlawful actions by officers and employees of Clinton Community College. Although community colleges receive some of their funding from the State of New York and their programs are subject to oversight by the Board of Trustees of the State University of New York (hereinafter SUNY), they are established and operated under local sponsorship (Education Law §§ 6301, 6302, 6304 and 6306). In addition, community colleges are not part of SUNY (Education Law § 352 and ) and are not State agencies (Education Law § 352 and ; see Brown v North Country Community Coll., 63 Misc 2d 442 [Sup Ct, Essex Co. 1970]). Clinton County is the local sponsor of Clinton Community College (see Matter of McDonough v Erie County, 207 AD2d 987 [4th Dept 1994]), and it is Clinton County that is under a statutory obligation to indemnify Clinton Community College's employees, officers and board of trustees if any of them is found liable in actions brought against them (Education Law § 6308). The local sponsor, therefore, is the real party in interest and all pleading requirements applicable to actions against the local sponsor must be met (Solomon v State of New York, Ct Cl, Claim No. 105328, Motion No. M-64643, May 15, 2002, Patti, J. [UID No. 2002-013-020]). Accordingly, the Court of Claims lacks subject matter jurisdiction since neither the State nor SUNY is a proper party Defendant, and this Court does not have the jurisdiction to hear claims against Clinton Community College or its local sponsor, Clinton County (Musgrove v State of New York, Ct Cl, Claim No. 113611, Motion No. M-73481, February 1, 2008, Moriarty, III, J. [UID No. 2007-037-062]). Therefore, this cause of action is dismissed.
Turning to the cause of action alleging assault and taking of Claimant's property rights by the State Police, the State asserts that this cause of action should be dismissed as untimely. Pursuant to Court of Claims Act provisions applicable to property damage and personal injury actions, Claimant was required to file and serve his Claim within 90 days from the date of accrual unless a written Notice of Intention to File a Claim was served upon the Attorney General within such time period. In that case, the Claim itself was required to be filed and served upon the Attorney General within two years after the accrual of the Claim (to the extent Claimant asserts injuries caused by negligence or unintentional torts) or one year (to the extent he asserts intentional torts of State employees) (Court of Claims Act §§10, 10[3-b]). In either case, Claimant was required to initiate action within 90 days of the Claim's accrual. Here, it is undisputed that Claimant did not serve a Notice of Intention, thus, he had 90 days from the accrual of the cause of action to serve and file his Claim.
According to the Claim, this cause of action accrued on September 20, 2005. The Claim was filed on April 9, 2008. Defendant states that it was served on the Attorney General on May 1, 2008, although the photocopy of the envelope in Exhibit A attached to the motion is stamped:RECEIVED BY APR 09 2008 BUFFALO REGIONAL OFFICE NYS OFFICE OF THE ATTORNEY GENERAL
In either case, however, the Claim was served some two and one-half years after accrual of the cause of action. Court of Claims Act § 10 is more than a statute of limitations; it is a jurisdictional prerequisite to bringing and maintaining an action in this Court (De Marco v State of New York, 43 AD2d 786 [4th Dept 1973], affd 37 NY2d 735(1975); Antoine v State of New York, 103 Misc 2d 664 [Ct Cl 1980]). Failure to timely comply with the statutory filing requirements of the Court of Claims Act constitutes a fatal jurisdictional defect requiring dismissal (Buckles v State of New York, 221 NY 418, supra; Ivy v State of New York, 27 AD3d 1190, supra; Byrne v State of New York, 104 AD2d 782, supra). Pursuant to Court of Claims Act § 11(c), however, any such defect is waived unless it is raised with particularity as an affirmative defense, either by motion to dismiss prior to service of the responsive pleading or in the responsive pleading itself (see Knight v State of New York, 177 Misc 2d 181, 183 [Ct Cl 1998]).
This defect was timely and properly raised with particularity in the State's Answer (dated May 8, 2008) as its sixth affirmative defense, in accordance with Court of Claims Act § 11(c). Based upon the foregoing, Defendant's motion is granted and these causes of action are dismissed for failure to timely serve and file the Claim in accordance with Court of Claims Act §§ 10(3) and 10 (3-b).
January 15, 2009
Albany, New York
CHRISTOPHER J. MCCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court on the State's motion to dismiss the Claim:
Notice of Motion, Affirmation
and Exhibits Attached 1
Opposition Papers consisting of
"Appendix and Table of Case Law" 2
Filed Papers: Claim, Answer