New York State Court of Claims

New York State Court of Claims

TOLLIVER v. THE STATE OF NEW YORK, #2009-040-053, Claim No. 115033, Motion Nos. M-76085, CM-76535


Synopsis


State’s motion to dismiss granted as Notice of Intent was not served upon defendant within 90 days of accrual of Claim. Cross-motion pursuant to Court of Claims Act § 10(6) to file a claim late granted.

Case Information

UID:
2009-040-053
Claimant(s):
ERIC TOLLIVER
Claimant short name:
TOLLIVER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115033
Motion number(s):
M-76085
Cross-motion number(s):
CM-76535
Judge:
CHRISTOPHER J. McCARTHY
Claimant’s attorney:
RONEMUS & VILENSKYBy: Nadia Lescott, Esq.
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New YorkBy: Michael T. Krenrich, Esq., AAG
Third-party defendant’s attorney:

Signature date:
July 9, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

For the reasons set forth below, Defendant’s motion to dismiss the Claim based upon Claimant’s failure to comply with the service requirements of Court of Claims Act §§ 10 and 11 and pursuant to CPLR 3211(a)(2) and (8), for lack of personal and subject matter jurisdiction, is granted. Claimant’s cross-motion for permission to file a Claim late, pursuant to Court of Claims Act § 10(6), is granted.

The Claim, which was filed with the Clerk of the Court on March 28, 2008, alleges that, on August 15, 2007, while incarcerated at Clinton Correctional Facility located in Dannemora, New York (Clinton), Claimant was ordered by members of the facility staff to take a large bag of clothes to the laundry room. While Claimant was proceeding down a steep flight of steps, located at or near the west side of the mess hall, Claimant fell down the stairs and injured his back. The Claim further asserts that, prior to the accident, Clinton was placed on notice that, as a result of having had surgery on his left leg, Claimant had a “flat” order and should not be walking up and down stairs (Claim, ¶ 5). It is further alleged that Claimant was injured as a result of the State’s negligence in directing him to use the stairs.

Prior to filing the Claim with the Clerk of the Court and serving it upon the Defendant, Claimant served a Notice of Intention to File a Claim upon the Defendant on November 21, 2007 (see Ex. B attached to State’s Motion).

Pursuant to Court of Claims Act § 10(3), the provision applicable to personal injury actions caused by negligence or unintentional torts of State employees, 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. In either case, Claimant was required to initiate action within 90 days of the Claim’s accrual.

Court of Claims Act § 11(a)(i) provides that the Claim shall be filed with the Clerk of the Court and that a copy shall be served upon the Attorney General within the time period provided in Section 10 of the Court of Claims Act, either personally or by certified mail, return receipt requested. The statute further provides that service by certified mail, return receipt requested, is not complete until the Claim or Notice of Intention to File a Claim is received by the Attorney General. It is well established that failure to timely serve the Attorney General in strict compliance with Court of Claims Act § 11 gives rise to a jurisdictional defect (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 723 [1989]; Matter of Dreger v New York State Thruway Auth., 177 AD2d 762, 763 [3d Dept 1991], affd 81 NY2d 721 [1992]; Suarez v State of New York, 193 AD2d 1037, 1038 [3d Dept 1993]).

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]).

In his affirmation submitted in support of the State’s motion, Defense counsel states that the Notice of Intention to File a Claim was served upon the Attorney General’s office on November 21, 2007 (Affirmation of Michael T. Krenrich, Esq., ¶ 4, n 1). Counsel further states that the Notice of Intention was unverified. The Claim was served upon Defendant on March 31, 2008 (id.; see Ex. A attached to Motion). Claimant has alleged that the Claim accrued on August 15, 2007[1]. Thus, Claimant had 90 days from August 15, 2007, either to timely serve his Notice of Intention to File a Claim or to serve and file his Claim. Therefore, Claimant had until Tuesday, November 13, 2007, to initiate action. As stated above, the document was served on November 21, 2007, eight days late. As the Notice of Intention was not timely served, it did not extend Claimant’s time to serve and file the Claim. Thus, the Claim was not timely served and filed as required by Court of Claims Act § 10(3).

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 (DeMarco 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 (Lichtenstein v State of New York, 93 NY2d 911, 913 [1999]; Buckles v State of New York, 221 NY 418 [1917]; 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 [1985]). The Court cannot waive a defect in jurisdiction that has been timely raised (see Thomas v State of New York, 144 AD2d 882 [3d Dept 1988]). The defect asserted was timely and properly raised with particularity, in the State’s Answer as its fourth defense, in accordance with Court of Claims Act § 11(c).

Based upon the foregoing, Defendant’s motion is granted and the Claim is dismissed for failure to timely serve and file it in accordance with Court of Claims Act § 10(3).

The Court next turns to Claimant’s cross-motion pursuant to Court of Claims Act § 10(6) seeking permission to serve and file a late claim. The proposed Claim as attached to Claimant’s motion papers appears to be a copy of the Claim that the Court has just dismissed (Ex. F attached to Claimant’s Cross-Motion [labeled “Amended Notice of Claim”]).

Pursuant to Court of Claims Act § 10(6), it is within the Court’s discretion to allow the filing of a late claim if the applicable statute of limitations set forth in Article 2 of the CPLR has not expired. Thus, the first issue for determination upon any late claim motion is whether the application is timely. In this instance, the proposed Claim asserts a cause of action sounding in negligence (CPLR 214[5]), a three-year statute of limitations). Movant asserts that the Claim accrued on August 15, 2007. Thus, the proposed Claim is timely.

Next, in determining whether to grant a motion to file a late claim, Court of Claims Act § 10(6) sets forth six factors that should be considered, although other factors deemed relevant also may be taken into account (Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]). Movant need not satisfy every statutory element (see Bay Terrace Coop. Section IV v New York State Employees’ Retirement Sys. Policemen’s & Firemen’s Retirement Sys., 55 NY2d 979, 981 [1982]). However, the burden rests with Movant to persuade the Court to grant his or her late claim motion (see Matter of Flannery v State of New York, 91 Misc 2d 797 [Ct Cl 1977]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]).

The first factor to be considered is whether the delay in filing the claim was excusable. Movant did not proffer an excuse for the delay in timely filing and serving the claim. However, tender of a reasonable excuse for delay in filing a claim is not a precondition to permission to file a late claim such as to constitute a sine qua non for the requested relief (Bay Terrace Coop. Section IV v New York State Employees’ Retirement Sys. Policemen’s & Firemen’s Retirement Sys., 55 NY2d 979, supra at 981).

The next three factors to be addressed – whether Defendant had notice of the essential facts constituting the claim, whether Defendant had an opportunity to investigate the circumstances underlying the claim, and whether the failure to file or serve a timely claim or to serve a notice of intention resulted in substantial prejudice to Defendant – are interrelated and will be considered together. Defense counsel concedes that Defendant had notice of the incident and a reasonable opportunity to investigate (Affirmation in [Opposition] of Michael T. Krenrich, Esq., ¶ 10). Thus, the Court concludes these factors weigh in Movant’s favor.

The fifth factor to be considered is whether Movant has another remedy available. In this case, Defendant concedes Movant does not have an alternate remedy (id.).

The sixth, final and perhaps most important factor to be considered is whether the proposed claim has the appearance of merit, for it would be futile to permit a defective claim to be filed, subject to dismissal, even if other factors tended to favor the request (Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]; Prusack v State of New York, 117 AD2d 729, 730 [2d Dept 1986]; Rosenhack v State of New York, 112 Misc 2d 967, 968 [Ct Cl 1982]; Flaherty Corp. v State of New York [New York State Parks & Recreation Div.], 102 Misc 2d 438, 440 [Ct Cl 1979]). It is Movant’s burden to show that the claim is not patently groundless, frivolous or legally defective, and, based upon the entire record, including the proposed claim and any affidavits, that there is reasonable cause to believe that a valid cause of action exists. While this standard clearly places a heavier burden upon a party who has filed late than upon one whose claim is timely, it does not, and should not, require Movant to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit Movant to file a late claim (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, supra at 11-12).

At this stage of the proceeding, it should be noted, the Court generally takes as true factual allegations of Movant. Based upon the entire record, the Court finds that the proposed Claim has the appearance of merit. Movant need only establish the appearance of merit; he need not prove a prima facie case at this stage of the proceedings.

In accordance with the foregoing, the Court finds that the preponderance of factors considered weigh in Movant’s favor. The mix of circumstances presented by this case falls well within the remedial purposes of the amendments to the Court of Claims Act enacted in 1976 (L 1976, ch 280), which was designed to vest in the Court of Claims broader discretion than previously existed to permit late filing, indicating a strong concern that litigants with meritorious claims be afforded their day in court (Calzada v State of New York, 121 AD2d 988, 989 [1st Dept 1986]; Plate v State of New York, 92 Misc 2d 1033, supra). Movant has provided ample basis for a favorable exercise of this Court’s discretion to grant him leave to file a late claim against the State. Therefore, within forty-five (45) days of the date of filing of this Decision and Order, Movant shall file with the Clerk of the Court his proposed Claim against the State, and serve a copy of the proposed Claim upon the Attorney General by personal service or certified mail, return receipt requested. In serving and filing the Claim, Movant is directed to follow all of the requirements of the Court of Claims Act, including § 11-a, regarding the filing fee, and the Uniform Rules for the Court of Claims.


July 9, 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 Defendant’s motion to dismiss and Movant’s motion for permission to serve and file a claim late:

Papers Numbered


Notice of Motion, Affirmation in Support
and Exhibits Attached 1


Notice of Cross-Motion, Affirmation

in Support of Cross-Motion and in Opposition
to Motion & Exhibits Attached 2

Affirmation in [Opposition] 3



Filed Papers: Claim, Answer


[1].The Claim states that the Notice of Intention erroneously states the accrual date as October 15, 2007 instead of August 15, 2007 (Claim, ¶ 11).