New York State Court of Claims

New York State Court of Claims

DIANA Q. v. THE STATE OF NEW YORK, #2009-045-024, Claim No. 116515, Motion No. M-76668


Synopsis


205(a) recommencement denied, clmt. Failed to serve new claim upon AG within 6 month time period.

Case Information

UID:
2009-045-024
Claimant(s):
DIANA Q.
1 1.Because this claim involves an alleged victim of a sexual offense, the caption has been amended to give the claimant a fictitious name in order to protect her identity (see Civil Rights Law § 50-b).
Claimant short name:
DIANA Q.
Footnote (claimant name) :
Because this claim involves an alleged victim of a sexual offense, the caption has been amended to give the claimant a fictitious name in order to protect her identity (see Civil Rights Law § 50-b).
Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
116515
Motion number(s):
M-76668
Cross-motion number(s):

Judge:
GINA M. LOPEZ-SUMMA
Claimant’s attorney:
Conway Business Law Group, P.C.By: Mona R. Conway, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo, Attorney GeneralBy: Kimberly A. Kinirons, Esq.
Third-party defendant’s attorney:

Signature date:
September 30, 2009
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read and considered by the Court on this motion: Defendant’s Notice of Motion, Defendant’s Affirmation in Support with annexed Exhibits A-B, Claimant’s Affirmation in Opposition with Annexed Exhibits A-D; Defendant’s Reply Affirmation and the filed Claim.

Defendant, the State of New York, has brought this motion seeking an order dismissing the claim pursuant to Court of Claims Act (CCA) § 10 and CPLR 3211(a)(2) and (5). In response, claimant, Diana Q., argues that the claim in this matter was timely filed pursuant to CPLR 205(a).

Defendant initially contends that it was not served with a Notice of Intention to File a Claim in this matter and that a Verified Claim was served on the Office of the Attorney General on March 30, 2009. The Verified Claim was filed with the Clerk of the Court of Claims on March 6, 2009. In the Verified Claim, claimant asserts that a Notice of Intention to File a Claim was served on the Office of the Attorney General on March 23, 2007. Claimant also contends that a timely filed action raising claims of assault and battery was filed in Federal Court against defendant. Apparently, the Federal Court action was dismissed on September 22, 2008 on the grounds of “Sovereign Immunity[2].” The Court notes that it was not provided with either a copy of the claim filed in Federal Court or a copy of the Federal Court decision. Claimant continues in the Verified Claim that she was a student admitted to the State University of New York at Stony Brook (SUNY) during the 2006-2007 school year. Claimant was seeking a Bachelor of Science degree in Health Science, with a concentration in Nuclear Medicine at that time. From March 8, 2007 through March 11, 2007, claimant was required to attend an off-campus symposium in Atlantic City, New Jersey with a group of other SUNY students of the Nuclear Medicine Clinical program. The symposium was also attended by SUNY employee faculty members, including Professor Robert Matthews, a Nuclear Medicine professor. Claimant alleges that during the field trip Professor Matthews made many sexually inappropriate remarks and gestures in the presence of claimant and other female students of the Nuclear Medicine Clinical program. On the evening of March 10, 2007, claimant and several other SUNY students gathered socially at one student’s hotel room. At that time, Professor Matthews arrived at the hotel room uninvited and inebriated. Professor Matthews then allegedly lunged at claimant and groped her sexually. Claimant physically pushed Professor Matthews away from herself and shouted at him to leave her alone and never touch her again. Professor Matthews then allegedly lunged at claimant again and sexually assaulted her again. Professor Matthews was ultimately restrained and cast out of the hotel room. Claimant contends that defendant was aware that Professor Matthews had engaged in improper sexual harassment of female SUNY students prior to the March 10, 2007 incident.

Claimant asserts causes of action in her Verified Claim for both negligent and intentional torts which accrued on March 10, 2007. Defendant argues that the Verified Claim should be dismissed since claimant failed to file and serve the Verified Claim within the time statutory time period required by CCA §§ 10(3) and 10(3-b). Defendant also initially contends that it was never served with a Notice of Intention to File a Claim in this matter.

Claimant states that she served a Notice of Intention to File a Claim upon the Office of the Attorney General on March 20, 2007 by certified mail, return receipt requested. The March 20, 2007 document was addressed to the Director of Human Resources at the Stony Brook Medical Center and copied to the Office of the Attorney General as well as the President of Stony Brook University. In its reply defendant asserts that the March 20, 2007 letter should not be considered a Notice of Intention to File a Claim since it does not comply with the requirements of CCA § 11(b) and 22 NYCRR 206.6. Specifically, defendant argues that the letter did not state that it was a Notice of Intention to File a Claim, it did not set forth the causes of action in separately numbered paragraphs, it did not include the claimant’s address and it did not include a verification from claimant.

The Verified Claim in this matter was filed with the Clerk of the Court of Claims on March 6, 2009 and was served upon the Office of the Attorney General on March 30, 2009.

CCA § 10(3) provides that:

“[a] claim to recover damages for injuries to property or for personal injuries caused by the negligence or unintentional tort of an officer or employee of the state while acting as such officer or employee, shall be filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after the accrual of such claim.”



CCA §10(3-b) provides that:


“[a] claim to recover damages for injuries to property or

for personal injuries caused by the intentional tort of an

officer or employee of the state while acting as such officer

or employee, or of a member of the organized militia or of

an employee in the division of military and naval affairs of

the executive department, shall be filed and served upon the

attorney general within ninety days after the accrual of such

claim, unless the claimant shall within such time serve upon

the attorney general a written notice of intention to file a claim

therefor, in which event the claim shall be filed and served upon

the attorney general within one year after the accrual of such claim.”


The Court of Appeals has long held 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 Authority, 81 NY2d 721, 724 [1992]). Court of Claims Act §11(a) specifies that service upon defendant is not complete until the Notice of Intention to File a Claim or the claim is received by the Office of the Attorney General. Accordingly, claimants who have not met the service requirements of the Court of Claims Act have not properly commenced their actions (Lichtenstein v State of New York, 93 NY2d 911 [1999]). In order to properly commence an action in the Court of Claims, the claim must be both filed with the Clerk and served upon the defendant within the applicable filing period. Failure to comply with either requirement results in lack of jurisdiction requiring dismissal (Tooks v State of New York, 40 AD3d 1347 [3d Dept 2007]). Thus, even if the Court considered claimant’s March 20, 2007 letter to be a valid Notice of Intention to File a Claim, the Court would still be deprived of jurisdiction over the claim since the Verified Claim was not served on the defendant within the required statutory time periods prescribed by CCA §§ 10(3) and 10(3-b).

Claimant seeks to utilize the recommencement provisions contained within CPLR 205(a) to her claim. However, in order to apply the provisions of CPLR 205(a) in the Court of Claims the conditions precedent to suit required by CCA § 10 must be satisfied (Campbell v City of New York, 4 NY3d 200 [2005]; Yonkers Contr. Co. v Port Auth. Tran-Hudson Corp., 93 NY2d 375 [1999]). In the present matter this required the service of a valid Notice of Intention to File a Claim upon the Office of the Attorney General within ninety days from the date of accrual. Claimant argues that the March 20, 2007 letter should be considered her Notice of Intention to File a Claim in this matter. The March 20, 2007 letter is deficient and misleading in a number of ways. It is addressed to Edward J. Moretti, Director of Human Resources at the Stony Brook Medical Center, entitled complaint of sexual harassment and merely copied without any changes to the Office of the Attorney General. Significantly, the letter is not verified and does not comply with the requirements of CCA § 11(b). Consequently, this Court finds that the March 20, 2007 letter cannot serve as a Notice of Intention to File a Claim in this case. Accordingly, claimant cannot avail herself of the provisions of CPLR 205(a).

Even assuming, arguendo, that the Court treated the March 20, 2007 letter as a valid Notice of Intention to File a Claim, CPLR 205(a) relief would still be inappropriate in this matter. CPLR 205(a) provides, inter alia, that service on the defendant be effectuated within the six-month period after the termination of the initial action. Claimant contends that the federal court action was dismissed on September 22, 2008, however, claimant served her claim upon defendant on March 30, 2009, more than six months after the dismissal. Claimant’s failure to comply with the requirements of CPLR 205(a) prevents the application of the section’s recommencement provisions to this matter.

Therefore, for the foregoing reasons, defendant’s motion to dismiss the claim is granted.

September 30, 2009
Hauppauge, New York

HON. GINA M. LOPEZ-SUMMA
Judge of the Court of Claims




[2].Although claimant has failed to submit any documentation supporting her assertions regarding the Federal Court action, defendant does not dispute these facts.