Defendant's motion to dismiss claim was denied where the evidence submitted in support of the motion indicated that no claim was served and a defense in defendant's answer indicated claim was served by regular mail.
|Claimant short name:||McNEIL|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Dwight McNeil, Pro Se|
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Paul F. Cagino, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||March 22, 2010|
|See also (multicaptioned case)|
Defendant moves for dismissal pursuant to CPLR 3211 (a) (2) and (8) on the ground that the Attorney General's Office was not served with the claim as required by Court of Claims Act §§ 10 (3) and 11 (a).
Claimant, proceeding pro se, seeks damages for injuries allegedly sustained in a trip and fall accident at Mt. McGregor Correctional Facility on November 12, 2004 and for the defendant's alleged delay in providing medical treatment following the injury.(1) The claim filed on April 28, 2005 alleged in paragraph "7" that a notice of intention was served by certified mail, return receipt requested, on December 9, 2004.
Defendant served an answer to the claim on September 15, 2005 admitting paragraph "7" of the claim and raising as its first defense the following:
"That the Court lacks personal jurisdiction over defendant, the State of New York, and subject matter jurisdiction over the claim, as the claim was served by regular mail and not by certified mail, return receipt requested, or personal service as required by Section 11 of the Court of Claims Act."
Notwithstanding the allegation in the defendant's answer that the claim was improperly served by regular mail, defendant now contends, without explanation, that it was never served with the claim. In support of its dismissal motion defendant submitted an affidavit from Janet Barringer, a Senior Clerk in the Office of the Attorney General, in which she states that she has searched the records of the Office of the Attorney General, Claims Bureau, and found only a letter from the Court of Claims dated May 13, 2005 acknowledging receipt of the claim. She concludes that "I find no record that the Claim in this matter was ever served on the Attorney General" (defendant's Exhibit 1, ¶ 5).
Court of Claims Act § 11(a) (i) requires that the claim be filed with the Clerk of the Court and that "a copy shall be served upon the attorney general . . . either personally or by certified mail, return receipt requested . . ." Given the apparent conflict between the affidavit of Janet Barringer and the defendant's verified answer, which admits and/or denies the specific, individual numbered paragraphs of the claim and alleged improper service of the claim by regular mail service, the Court concludes that the defendant failed to establish its entitlement to dismissal based upon lack of service of the claim. Absent any attempt by defense counsel to explain these obvious inconsistencies, the defendant's motion to dismiss is denied.
To the extent defendant's motion is premised upon the failure to serve the claim within the time limitations set forth in Court of Claims Act § 10 (3), this defense was waived as it was not raised either by a pre-answer motion to dismiss or as a defense in the defendant's answer (Court of Claims Act 11 [c]).
Accordingly, defendant's motion is denied.
March 22, 2010
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
1. Claimant was an inmate in that facility at the time of the accident and has since been released.