New York State Court of Claims

New York State Court of Claims

WALTER v. THE STATE OF NEW YORK, #2009-044-533, Claim No. 112844, Motion Nos. M-75837, CM-76230


Claim dismissed for improper service. Cross motion for permission to file late claim granted in relation to injuries incurred in dog bite case at State park.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant’s attorney:
HOGAN WILLIG, PLLCBY: Tammy L. Riddle, Esq., of counsel
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Carol A. Cocchiola, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 29, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Claimants filed this claim to recover for personal injuries allegedly received by claimant Timothy Walter[1] when he was bitten by a dog while at Stony Brook State Park (the Park), which is owned and operated by defendant State of New York (defendant). Defendant answered and asserted several affirmative defenses.[2] Claimants now move to dismiss defendant’s first affirmative defense asserting lack of jurisdiction based upon service of the claim by express mail, return receipt requested. In the alternative, claimants request permission to file and serve a late claim. Defendant opposes the motion and cross-moves to dismiss the claim based upon improper service. Claimants reply and oppose the cross motion.

As it may be potentially dispositive of the existing claim between the parties, the Court will initially address defendant’s cross motion to dismiss Claim No. 112844. Defendant argues that service of the claim by express mail, return receipt requested, fails to comply with Court of Claims Act § 11 (a) (i), and the Court therefore lacks jurisdiction over the State.

Conversely, claimants contend that because express mail, return receipt requested, is virtually identical to certified mail, return receipt requested, the Court should find them to be in substantial compliance with the statute. Claimants argue that the important aspect of the statutory mailing requirement is the existence of a return receipt.
It is well-settled that “[b]ecause suits against the State are allowed only by the State’s waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed” (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]). As a result, the courts have repeatedly held that service by mail using a method other than certified mail, return receipt requested, is not sufficient service to commence an action in the Court of Claims (see Filozof v State of New York, 45 AD3d 1405 [2007] [where service by registered mail, return receipt requested was insufficient]; Martinez v State of New York, 282 AD2d 580 [2001], lv denied 96 NY2d 720 [2001]; Hodge v State of New York, 213 AD2d 766 [1995] [express mail service not in compliance with Court of Claims Act § 11 (a)]; Turley v State of New York, 279 AD2d 819 [2001], lv denied 96 NY2d 708 [claim served by ordinary mail dismissed for failure to comply with the statute]; Negron v State of New York, 257 AD2d 652 [1999] [service via Federal Express by overnight delivery not authorized by the Court of Claims Act]; Howard v State of New York, Ct Cl, Nov. 22, 2002, Fitzpatrick, J., Claim No. 106303, Motion No. M-65666 [UID # 2002-018-193] [service of a claim by priority mail with delivery confirmation insufficient]).
Because the requirements of Court of Claims Act § 11 are jurisdictional in nature, failure to strictly comply with them results in a lack of jurisdiction (see Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]; Pagano v New York State Thruway Auth., 235 AD2d 408 [1997], lv denied 90 NY2d 804 [1997]). In this instance, defendant’s properly pleaded jurisdictional defense of improper service is valid, and the State’s cross motion is therefore granted (see Court of Claims Act § 11 [c]; Fulton v State of New York, 35 AD3d 977 [2006], lv denied 8 NY3d 809 [2007]; Philippe v State of New York, 248 AD2d 827 [1998]). Accordingly, Claim No. 112844 is hereby dismissed. That portion of claimants’ motion seeking dismissal of defendant’s first affirmative defense is denied as moot.
The Court must therefore address claimants’ motion for leave to file and serve a late claim.[3] A motion seeking permission to file and serve a late claim must be brought within the statute of limitations period attributable to the underlying cause of action (Court of Claims Act
§ 10 [6]). Claimant asserts that he was injured on July 9, 2006, when he was bitten by a dog at the Park. The applicable statute of limitations for a negligence cause of action is three years from the date of accrual (see CPLR 214 [5]). Accordingly, this motion, mailed on November 12, 2008 is timely (see Matter of Unigard Ins. Group v State of New York, 286 AD2d 58 [2001]).
Having determined that the motion is timely, the Court turns to a consideration of the merits of the motion itself. The factors that the Court must consider under Court of Claims Act
§ 10 (6) in determining a motion to permit a late filing of a claim are whether:
1) the delay in filing the claim was excusable;
2) defendant had notice of the essential facts constituting the claim;
3) defendant had an opportunity to investigate the circumstances underlying the claim;
4) the claim appears to be meritorious;
5) the failure to file or serve upon the attorney general a timely claim or to
serve upon the attorney general a notice of intention resulted in substantial prejudice to defendant; and
6) claimant has any other available remedy.
Claimants assert that their counsel reasonably relied upon representations from the United States Postal Service that express mail, return receipt requested, was the same as certified mail, return receipt requested, in serving the (now-dismissed) original claim. They argue that therefore any delay in serving a new claim is justified. Nevertheless, the statute clearly authorizes only certified mail, return receipt requested (see supra). Neither ignorance of the law (Matter of E.K. v State of New York, 235 AD2d 540, 541 [1997], lv denied 89 NY2d 815 [1997]; Sevillia v State of New York, 91 AD2d 792 [1982]) nor law office failure[4] are adequate excuses for failing to comply with the filing or service requirements of Court of Claims Act § 10 (see Matter of Sandlin v State of New York, 294 AD2d 723 [2002], lv dismissed 99 NY2d 589 [2003]; Nyberg v State of New York, 154 Misc 2d 199, 200 [1992]). Accordingly, this factor weighs against claimant.
The three factors of notice of the essential facts, an opportunity to investigate and the lack of substantial prejudice are frequently analyzed together since they involve similar considerations. As claimants correctly contend, receipt of the claim at the Attorney General’s Office on October 5, 2006, within 90 days after its accrual – notwithstanding its improper service by express mail – provided defendant with notice of the essential facts of the incident. Further, defendant candidly admits it now has an opportunity to investigate the underlying facts of the claim. Accordingly, the factors of notice and an opportunity to investigate weigh in favor of claimants.
Defendant argues that this incident occurred over 2½ years ago, and as a result, the State will suffer substantial prejudice in its defense because any evidence and witnesses are now unavailable. Claimants allege that defendant was aware that the dog (apparently owned by Mark E. Ehlers) had bitten an eight-year-old girl on July 8, 2006, the day before claimant was bitten. The Park Police conducted an investigation and obtained information concerning Ehlers, including that he was camping at site 97, his address and cell phone number, as well as the name of the individual who transported claimant to the hospital shortly after the incident.[5] Further, Samantha Berical, a friend of claimant and eyewitness to the incident, also gave a written statement to the Park Police. Notwithstanding the significant lapse in time since the incident, there is sufficient information available to assist defendant in preparation of its defense. Given the lack of substantial prejudice to defendant, this factor also weighs in favor of claimant.
Another factor to be considered is whether claimant has any other available remedy. Claimants admit that they are “in the process of commencing suit against the owner of the dog,”[6] but argue that they may not be able to locate or serve him, and in any event, his ability to satisfy a judgment against him is unknown. Notwithstanding the uncertainty of claimants’ recourse against Ehlers, another remedy is clearly available. Thus, this factor weighs against claimants.
The issue of whether the proposed claim appears meritorious is the most crucial component in determining a motion under Court of Claims Act § 10 (6), since it would be futile to permit a meritless claim to proceed (Matter of Santana v New York State Thruway Auth.,
92 Misc 2d 1, 10 [1977]). In order to establish a meritorious claim, a claimant must demonstrate that the proposed claim is not patently groundless, frivolous, or legally defective, and that there is reasonable cause to believe that a valid claim exists (id. at 11). There is a heavier burden on a party moving for permission to file a late claim than on a claimant who has complied with the provisions of the Court of Claims Act (see id. at 11-12; see also Nyberg v State of New York, supra).
Defendant contends that even though the State is the owner of the Park, claimants’ allegations of negligence are akin to police protection, and thus constitute a governmental function. Defendant asserts that in order to establish merit, claimants must set forth both a special duty owed to them and their reliance upon it.
Conversely, claimants argue that defendant was acting in a proprietary manner by inviting the public to use the Park and its tent and trailer camping sites. Claimants assert that once defendant had knowledge of the existence of a vicious dog on its property, the State should have, in the exercise of reasonable care, confirmed that the dog had been removed from the park.
In the ownership of property, the State may be acting in both a proprietary capacity, i.e. one traditionally performed by private entities, such as landlords, and a governmental capacity, i.e. one undertaken for the general safety and well-being of the public (Miller v State of New York, 62 NY2d 506 [1984]; see also Balsam v Delma Eng’g Corp., 90 NY2d 966, 968 [1997]). In the State’s governmental function, it “remains immune from negligence claims arising out of governmental functions such as police protection unless a special relationship with a person creates a specific duty to protect, and that person relies on performance of that duty” (Price v New York City Hous. Auth., 92 NY2d 553, 557 - 558 [1998]). “When the liability of a governmental entity is at issue, ‘[i]t is the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred which governs liability’ ” (Miller v State of New York, supra at 513, quoting Weiner v Metropolitan Transp. Auth., 55 NY2d 175, 182 [1982]).
The allegedly negligent conduct in this claim is that defendant:
had been specifically notified of the vicious propensities of the animal, and/or, in the exercise of reasonable care, should have had notice and knowledge of the dangerous situation but failed and neglected to remedy the situation within a reasonable time after such notice, including . . . directing the owners of the dangerous dog to vacate the premise; ensuring compliance with such direction by enforcing the removal of the owner and his/her/their dog from the park, and; in being otherwise negligent in failing to take appropriate action to address the dangers presented by the dog . . . to patrons of the . . . Park.[7]
In this instance, defendant’s alleged failure to act, in light of its apparent knowledge that a dangerous dog was present on its property, occurred during the course of the State’s proprietary capacity as a landowner, rather than in its governmental capacity. As a landowner, the State has a duty to act as any reasonable person would to maintain its premises in a reasonably safe condition (Preston v State of New York, 59 NY2d 997 [1983]; Basso v Miller, 40 NY2d 233 [1976]). “A landlord may be liable for the attack by a dog kept by a tenant if the landlord has actual or constructive knowledge of the animal’s vicious propensities and maintains sufficient control over the premises to require the animal to be removed or confined” (Smedley v Ellinwood, 21 AD3d 676 [2005]; see also Strunk v Zoltanski, 62 NY2d 572 [1984]; Loper v Dennie, 24 AD3d 1131 [2005]). A dog’s vicious propensities can be established by either knowledge of a prior bite or previous similar aggressive acts (Loper v Dennie, supra). However, defendant is not an insurer of the safety of those on its property, and negligence may not be inferred solely from the happening of an accident (Melendez v State of New York, 283 AD2d 729 [2001], appeal dismissed 97 NY2d 649 [2001]).
In this case, defendant was aware that Ehlers was camping in the Park and that he owned a Great Dane which had bitten a young girl on July 8, 2006 – the day before claimant was attacked. Defendant therefore may be charged with knowledge of the dog’s vicious propensities. Further, as the owner of the Park, defendant appears to have the authority to require Ehlers to vacate the premises or remove the dog (see generally PRHPL 3.09).[8] Accordingly, the Court finds that the proposed cause of action has at least the initial appearance of merit.
Four of the six statutory factors, including the crucial factor of merit, weigh in favor of claimants. Claimants’ motion for permission to file and serve a late claim is hereby granted. Claimants shall file a claim containing the information required by Court of Claims Act § 11 (b), and setting forth the aforementioned causes of action. Claimants shall file said claim and serve a copy of it upon the Attorney General within thirty (30) days from the date of filing of this Decision and Order in the Office of the Clerk of the Court. The service and filing of the claim shall be pursuant to the strict requirements of the Court of Claims Act.
June 29, 2009
Binghamton, New York
Judge of the Court of Claims
The following papers were read on claimants’ motion and defendant’s cross motion:
1) Notice of Motion filed on November 12, 2008; Affidavit of Tammy L. Riddle, Esq., sworn to on November 12, 2008, and attached exhibits.
2) Notice of Cross Motion filed on February 9, 2009; Affirmation of Carol A. Cocchiola, Assistant Attorney General, dated February 4, 2009, and attached Exhibits A through E.
3) Affidavit of Tammy L. Riddle, Esq., sworn to on February 18, 2009, and attached Exhibits A through D.
Filed papers: Claim filed on October 6, 2006; Verified Answer filed on November 13, 2006.

[1]. Claimant Mary Jane Walter’s claim is derivative in nature and, unless otherwise indicated or required by context, the term “claimant” shall refer to Timothy Walter.
[2]. At a preliminary conference, the parties stipulated that the cause of action accrued in Steuben County rather than Livingston County as alleged in the claim. Venue of this matter was thereafter transferred to the Binghamton District (Walter v State of New York, Ct Cl, Sept. 12, 2007, Minarik, J., Claim No. 112844).
[3]. Claimants have attached a copy of Claim No. 112844 to their motion papers. Given that this claim has been dismissed, the Court will treat said document as the proposed claim, and refer to it as such.
[4]. Claimants specifically argue that because the 90-day period of Court of Claims Act § 10 (3) was about to expire, counsel “had no alternative but to send the Claim Express Mail to ensure timely service” (Claimants’ Motion to Dismiss Affirmative Defense, Affidavit of Tammy L. Riddle, Esq., sworn to November 12, 2008, ¶ 30). Law office failure can be accepted as a reasonable excuse, in the exercise of the Court’s discretion, as long as the movant submits facts to explain and justify the default and mere neglect is not the excuse offered (Cole-Hatchard v Grand Union, 270 AD2d 447 [2000]). However, as defendant correctly notes, counsel could have obtained personal service upon the Attorney General at any of the 13 Statewide Regional Offices. Claimants’ argument must consequently fail.
[5]. Defendant also had a copy of the Animal Bite Report for Alexandra Cooper, the eight-year-old child who had been bitten the previous day by the same dog. That report contained the location and phone number for the animal hospital where the rabies vaccine had been administered.
[6]. Claimants’ Motion to Dismiss Affirmative Defense, Affidavit of Tammy L. Riddle, Esq., sworn to November 12, 2008, ¶ 42.
[7]. Proposed Claim, ¶ 3.
[8]. Defendant also argues that by approaching the extremely large dog, claimant had assumed the risk of being injured. However, in reviewing the evidence before the Court and affording claimants the benefit of every favorable inference (see e.g. Parker v State of New York, 242 AD2d 785 [1997]), claimant inquired about whether “the dog was safe,” and did not attempt to approach it until Ehlers stated that the dog “was having a good day.” Although claimant’s conduct may be relevant in assessing his comparative negligence, if any, it does not constitute a primary assumption of the risk such that all recovery in this matter may be barred (see Coole-Mayhew v Timm, 18 AD3d 948, 950 [2005]).