WALTER v. THE STATE OF NEW YORK, #2009-044-533, Claim No. 112844, Motion Nos.
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.
TIMOTHY WALTER and MARY JANE WALTER
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
CATHERINE C. SCHAEWE
HOGAN WILLIG, PLLCBY: Tammy L. Riddle, Esq., of counsel
HON. ANDREW M. CUOMO, ATTORNEY
GENERALBY: Carol A. Cocchiola, Assistant Attorney General
June 29, 2009
See also (multicaptioned
Claimants filed this claim to recover for personal injuries allegedly received
by claimant Timothy Walter
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.
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
). 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  [where service by
registered mail, return receipt requested was insufficient]; Martinez v State
of New York, 282 AD2d 580 , lv denied 96 NY2d 720 ;
Hodge v State of New York, 213 AD2d 766  [express mail service not
in compliance with Court of Claims Act § 11 (a)]; Turley v State of New
York, 279 AD2d 819 , 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  [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 ;
Pagano v New York State Thruway Auth., 235 AD2d 408 , lv
denied 90 NY2d 804 ). 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 , lv
denied 8 NY3d 809 ; Philippe v State of New York, 248 AD2d 827
). 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.
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
§ 10 ). 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 ). Accordingly, this motion, mailed on November 12, 2008 is timely
(see Matter of Unigard Ins. Group v State of New York, 286 AD2d 58
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
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
4) the claim appears to be meritorious;
5) the failure to file or serve upon the attorney general a timely claim or
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 ,
89 NY2d 815 ; Sevillia v State of New York
AD2d 792 ) nor law office failure
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
294 AD2d 723 , lv dismissed
99 NY2d 589 ; Nyberg
v State of New York
, 154 Misc 2d 199, 200 ). 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
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.
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,”
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 ). 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 ; see also Balsam v Delma Eng’g Corp., 90 NY2d 966, 968
). 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 ). “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 ).
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 . . .
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 ; Basso
v Miller, 40 NY2d 233 ). “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 ; see also Strunk v
Zoltanski, 62 NY2d 572 ; Loper v Dennie, 24 AD3d 1131 ).
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 , appeal dismissed
97 NY2d 649 ).
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
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.
Binghamton, New York
HON. CATHERINE C. SCHAEWE
Judge of the Court of Claims
The following papers were read on claimants’ motion and defendant’s
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
. 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.
. 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,
Cl, Sept. 12, 2007, Minarik, J., Claim No. 112844).
. 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
. 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 ). 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
. 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
. Claimants’ Motion to Dismiss
Affirmative Defense, Affidavit of Tammy L. Riddle, Esq., sworn to November 12,
2008, ¶ 42.
. Proposed Claim, ¶ 3.
. 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
242 AD2d 785 ), 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