New York State Court of Claims

New York State Court of Claims

ARMSTRONG v. THE STATE OF NEW YORK, #2009-040-031, Claim No. NONE, Motion No. M-76067


Synopsis


Motion to deem Notice of Intention to be a duly filed Claim pursuant to Court of Claims Act § 10(8)(a) granted.

Case Information

UID:
2009-040-031
Claimant(s):
EDWARD ARMSTRONG
Claimant short name:
ARMSTRONG
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-76067
Cross-motion number(s):

Judge:
CHRISTOPHER J. MCCARTHY
Claimant’s attorney:
Edward Armstrong, Pro Se
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New YorkBy: Dewey Lee, Esq., AAG
Third-party defendant’s attorney:

Signature date:
April 20, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

For the reasons set forth below, Movant’s motion to deem the Notice of Intention to File a Claim as a duly filed Claim pursuant to Court of Claims Act § 10(8)(a) is granted.

On February 23, 2006, Movant served Defendant with a Notice of Intention to File a Claim by certified mail, return receipt requested (see copy of return receipt card stamped by Attorney General’s office attached to Movant’s motion papers). The Notice of Intention asserts that:
On January 20, 2006, at approximately 4:30 AM, Claimant was transported from Green Haven C.F. to Downstate C.F. and from Downstate C.F. at 8:45 AM to Mt. McGregor C.F. when the bus stopped to feed all the prisoners except claimant because the Downstate C.F. did not provide a Kosher meal. At approximately 5:45 PM on the same day, Claimant arrived at Upstate C.F. and notified & signed S-Block Meal Plan form #UP034 to receive KOSHER food. NO Kosher food was provided to the Jewish claimant for 4 days and nights. Claimant was denied his rights.
(Attached to Movant’s motion papers).

Movant, however, did not serve and file a claim within two years after accrual of his claim as required by Court of Claims Act § 10(3). Accordingly, he seeks an order pursuant to Court of Claims Act § 10(8)(a) deeming his Notice of Intention to be a Claim or, in the alternative, for permission to serve and file a Claim late pursuant to Court of Claims Act § 10(6).

Court of Claims Act § 10(8)(a) provides:
A claimant who timely serves a notice of intention but who fails to timely serve or file a claim may, nevertheless, apply to the court for permission to treat the notice of intention as a claim. The court shall not grant such application unless: it is made upon motion before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules; the notice of intention was timely served, and contains facts sufficient to constitute a claim; and the granting of the application would not prejudice the defendant.
As stated above, Movant has established that he served a Notice of Intention upon the Attorney General by certified mail, return receipt requested on February 23, 2006. The motion is timely as it was served and filed within three years of accrual of the Claim (see CPLR 214[5]).

The next factor for the Court to consider is whether the Notice of Intention contains sufficient facts to constitute a Claim. The Court of Appeals, in Lepkowski v State of New York (1 NY3d 201, 207 [2003]) stated: “[a]s relevant here, section 11 (b) places five specific substantive conditions upon the State’s waiver of sovereign immunity by requiring the claim to specify (1) ‘the nature of [the claim]’; (2) ‘the time when’ it arose; (3) the ‘place where’ it arose; (4) ‘the items of damage or injuries claimed to have been sustained’; and (5) ‘the total sum claimed.’ ”

The Court further stated “[t]he Court of Claims Act does not require the State to ferret out or assemble information that section 11 (b) obligates the claimant to allege” [citations omitted] (Lepkowski v State of New York, supra at 208).

In Kolnacki v State of New York (8 NY3d 277, 280-281 [2007]), the Court of Appeals said, “Lepkowski made clear that all of the requirements in section 11 (b) are ‘substantive conditions upon the State’s waiver of sovereign immunity’ (1 NY3d at 207). The failure to satisfy any of the conditions is a jurisdictional defect.”

In Little v State of New York (Ct Cl, Claim No. 115112, Motion Nos. M-75469, CM-75658, January 12, 2009, DeBow, J. [UID No. 2009-038-506], the Court stated with regard to Court of Claims Act § 11(b):
The statement of facts required by Section 11 (b) of the Court of Claims Act must be “made with ‘sufficient definiteness to enable the State to be able to investigate the claim promptly and to ascertain its liability under the circumstances. The statement must be specific enough so as not to mislead, deceive or prejudice the rights of the State. In short, substantial compliance with section 11 is what is required’ ” (Wharton v City Univ. of N.Y., 287 AD2d 559, 559-560 [2d Dept 2001], quoting Grumet v State of New York, 256 AD2d 441, 442 [2d Dept 1998]). “Although a Notice of Intention to file a claim need not include all the facts necessary to state a cause of action, it must at least set forth the general nature of the claim so as to give some indication of the manner in which the claimant was injured and how [defendant] was negligent and enable defendant to ascertain the existence and extent of its liability” (Cendales v State of New York, 2 AD3d 1165, 1167 [3d Dept 2003] [internal quotations omitted], quoting Sega v State of New York, 246 AD2d 753, 755 [3d Dept 1998], lv denied 92 NY2d 805 [1998] and Heisler v State of New York, 78 AD2d 767, 767-768 [4th Dept 1980]).

Here, the Court concludes that Movant’s Notice of Intention contains facts sufficient to constitute a Claim as it sets forth the nature of the Claim (i.e., negligence in failing to provide Claimant with kosher meals), the time and place it arose and that Movant’s rights were violated. In addition, Defendant has failed to establish it will be prejudiced if the Notice of Intention is treated as a Claim.

Based upon the foregoing, Movant’s motion is granted and Movant is directed to file with the Clerk of the Court a copy of the served Notice of Intention together with the filing fee of $50.00, or the appropriate motion pursuant to either CPLR 1101(d) or (f) for a reduction or waiver of the filing fee, within thirty (30) days of the date of filing of this Decision and Order.

Movant’s motion for permission to serve and file a Claim late is denied as moot. However, the Court notes the proposed Claim Movant submitted with his affidavit in reply to Defendant’s opposition to his motion contains many more allegations of negligence and violations of Movant’s rights than are contained in the Notice of Intention. In addition, those additional events allegedly occurred at various correctional facilities around the State at various times and each appears to be a separate claim which accrued on a separate date. Thus, it appears that each of those events may be the proper subject of a separate and distinct claim, but they cannot be combined with this Claim relating back to the incidents of January 20, 2006.


April 20, 2009
Albany, New York

HON. CHRISTOPHER J. MCCARTHY
Judge of the Court of Claims


The following papers were read and considered by the Court on Movant’s motion to deem the Notice of Intention to File a Claim as a duly filed Claim pursuant to Court of Claims Act § 10 (8)(a):

Papers Numbered


Notice of Motion, Affidavit in Support &
attachments 1


Affirmation from Assistant Attorney General
Dewey Lee 2

Affidavit in Reply & attachments 3