Claimant's motion for an order deeming his Notice of intention to File a Claim to be a Claim is granted. The Clerk of the Court is directed to file the Notice of Intention as an Amended Claim, without necessity of dismissing the filed claim and filing a new one.
|Claimant short name:||FRANTZ|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||STEPHEN J. MIGNANO|
|Claimant's attorney:||JEAN FRANTZ, pro se|
|Defendant's attorney:||ANDREW M. CUOMO, ATTORNEY GENERAL
By: Joan Matalavage, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||June 23, 2010|
|See also (multicaptioned case)|
Claimant, an inmate at Shawangunk Correctional Facility proceeding pro se, moves for an order granting leave to "re-serve" the defendant and for other and further relief as the court finds proper. Defendant opposes the motion.
The underlying claim accrued on January 8, 2008 when, as alleged by claimant, he suffered a fracture and multiple avulsions and lacerations to his right index finger when it was struck by the moving blades of a fan. Claimant alleges that the protective grille on the fan had been modified, allowing his finger to slip through, and that such was the result of negligence on the part of defendant's employees.
Claimant served a verified Notice of Intention to File a Claim by certified mail, return receipt requested, on February 15, 2008, well within the required 90-day period. He then served and filed, on January 12, 2009, the instant claim. In its Answer, filed January 29, 2009, defendant alleged that the court lacks personal and subject matter jurisdiction because although the claim was served by certified mail, no return receipt was requested, and that such service does not comport with the requirements of the Court of Claims Act.
Despite defendant's contention that the Claim was improperly served depriving the court of jurisdiction, no motion to dismiss the claim was ever made. Even now, no cross-motion seeking dismissal has been made, notwithstanding claimant's implicit concession of the validity of defendant's jurisdictional contention.
Since claimant served an adequate Notice of Intention by a proper method within 90 days of accrual, he had until January 8, 2010, two years after accrual, to "re-serve" the Claim and correct the jurisdictional defect on his own, without permission of the court. The passage of that date prevents the jurisdictional defect arising from claimant's failure to request a return receipt for his Claim from being addressed in that simple a manner.
Nevertheless, claimant notes in his affidavit in support of this motion that "this Court has the authority to convert the Notice of Intention to File Claim into the actual Claim, because that was, in fact, served as required and mandated by law," and he specifically requests, as an alternative to being granted leave to "re-serve," that his Notice of Intention be deemed a Claim.
Section 10(8)(a) of the Court of Claims Act provides as follows:
"A claimant who timely serves a notice of intention but who fails to timely serve or file a claim may, nevertheless, apply to the court for permission to treat the notice of intention as a claim. The court shall not grant such application unless: it is made upon motion before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules; the notice of intention was timely served, and contains facts sufficient to constitute a claim; and the granting of the application would not prejudice the defendant."
The facts herein fall squarely within the requirements of section 10(8). Claimant's motion was made prior to the expiration of the underlying statute of limitations (January 8, 2011), his Notice of Intention was timely and properly served, it contains facts sufficient to constitute a Claim and comports in all respects with the requirements of section 11(b). Given those facts, the court finds that defendant would not suffer one iota of prejudice should the application be granted. Indeed, the facts of this case are exactly the situation that the ameliorative provisions of section 10(8) were intended to address: a technical defect not affecting the conclusion that defendant had timely and proper notice of the claim.
Accordingly, the motion is granted to the extent that the Notice of Intention dated and verified February 12, 2008 (exhibit A to the Notice of Motion) is deemed the Claim herein. The Clerk of the Court is directed to remove the exhibit from the original motion papers, label it an Amended Claim and file stamp it as of the date of the filing of this decision and order. Defendant will have 40 days from said date to interpose an answer.
June 23, 2010
White Plains, New York
STEPHEN J. MIGNANO
Judge of the Court of Claims
Notice of Motion, Affidavit and Exhibits
Affirmation in Opposition