|Claimant short name:||PURNELL|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||JUDITH A. HARD|
|Claimant's attorney:||Ervan Purnell, Pro Se|
|Defendant's attorney:||Hon. Andrew M. Cuomo, NYS Attorney General
By: Thomas R. Monjeau, Assistant Attorney General, Of Counsel
|Third-party defendant's attorney:|
|Signature date:||March 30, 2010|
|See also (multicaptioned case)|
Defendant moves this Court for an order dismissing Claim No. 115935 on the basis that the claim is barred by the doctrine of res judicata, that the claim fails to state a cause of action, and that the Court lacks personal and subject matter jurisdiction. Claimant opposes the motion. For the reasons set forth below, the Court grants defendant's motion to dismiss and dismisses Claim No. 115935.
The underlying claim alleges unlawful imprisonment. As best the Court can tell from the papers submitted, claimant was sentenced in 1981 to two indeterminate terms of six to twelve years for two counts of robbery in the second degree, with the sentences to run concurrently. After being conditionally released from custody, claimant was convicted of additional crimes and was sentenced in 1992 as a second felony offender to an indeterminate term of three to six years for attempted criminal sale of a controlled substance in the third degree and an indeterminate term of three to six years for criminal possession of a controlled substance in the fifth degree, with the sentences to run concurrently. After being conditionally released from custody again, claimant was convicted of additional crimes and was sentenced in 1997 as a second felony offender to an indeterminate term of eight to sixteen years for criminal sale of a controlled substance in the first degree and an indeterminate term of eight to sixteen years for criminal sale of a controlled substance, with the sentences to run concurrently. While the sentencing Court ordered that said terms run concurrently, it was silent as to how the terms were to run against claimant's prior undischarged terms. However, at some point thereafter, DOCS calculated claimant's 1997 sentences as running consecutive to his prior undischarged term.
Claimant filed an Article 78 petition, which was denied by Memorandum Decision and Order of the Supreme Court, Cayuga County (Leone, A.J.), dated January 22, 2009. In said Memorandum Decision and Order, the Court indicated that since the matter was being heard by the Appellate Division, Fourth Department, it was bound to rely on the decision in People v Correa, which held that "by operation of law" the current sentence ran consecutively to the sentence imposed on that petitioner's previous conviction (People v Correa, 52 AD3d 1251 [4th Dept 2008]).
As the issue of jurisdiction is potentially fatal, the Court will address it first. Defendant alleges that the Court has not obtained jurisdiction over the claim because claimant did not serve his claim in the manner required by the Court of Claims Act § 11 (a)(i). Specifically, defendant alleges, and claimant does not dispute, that claimant served his claim on the Office of the Attorney General by regular mail, rather than by certified mail, return receipt requested or personal service. In opposition, claimant appears to imply that because he was incarcerated and had filed his petition under "pauper status", service by regular mail is acceptable. The Court disagrees with claimant. However, it nonetheless denies defendant's motion to dismiss the claim based upon a lack of jurisdiction.
Court of Claims Act § 11 (a)(i) provides that the claim shall be filed with the Clerk of the Court, and a copy shall be served upon the Attorney General either personally or by certified mail, return receipt requested. Compliance with the filing and service requirements contained in section 11 of the Court of Claims Act is a jurisdictional prerequisite to bringing and maintaining an action in the Court of Claims (Buckles v State of New York, 221 NY 418 ), and failure to comply constitutes a fatal jurisdictional defect requiring dismissal (Thomas v State of New York, 144 AD2d 882 [3d Dept 1988]; Finnerty v New York State Thruway Auth., 75 NY2d 721 ; Matter of Dreger v New York State Thruway Auth., 177 AD2d 762 [3d Dept 1991], affd 81 NY2d 721 ; Suarez v State of New York, 193 AD2d 1037 [3d Dept 1993]). However, Court of Claims Act § 11 (c) states that any objection or defense based upon the failure to comply with (i) the time limitations contained in section ten of the Court of Claims Act, (ii) the manner of service requirements, or (iii) the verification requirements is waived unless raised, with particularity, either by a motion to dismiss made before service of the responsive pleading is required or in the responsive pleading.
In the present case, defendant has served a Verified Answer. Therefore, it is necessary to determine whether defendant has raised any jurisdictional objections in the Verified Answer and if so, whether said jurisdictional objections were pled with sufficient particularity. Defendant sets forth six affirmative defenses in its Verified Answer, the third of which addresses the issue of jurisdiction. Specifically, it states "[t]hat this Court lacks subject matter jurisdiction over the claim and personal jurisdiction over the defendant, The State of New York, as the claim is untimely in that neither the claim nor a notice of intention was served within ninety (90) days of the accrual of the claim as required by Court of Claims Act Sections 10(3) and 11" (see defendant's Verified Answer at paragraph "SIXTH").
Affirmative defenses are generally subject to the same basic pleading rules that apply to a claim (Siegel, op. cit., C:3018:19, p 160; see CPLR § 3013). Accordingly, they shall be sufficiently particular to give the Court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense (CPLR § 3013). To be raised with particularity, a defense must state the factual elements to be proven, not merely legal conclusions (see Rister v City University of New York, 20 Misc 3d 195 [Ct Cl 2008]; Sinacore v State of New York, 176 Misc 2d 1 [Ct Cl 1998]). In Garcia v State of New York (Claim No. 84965, Motion No. M-48313, filed Sept. 24, 1993, Benza, J., opn. at 4), which addressed the issue of service, the Court held that defendant's statement that neither the notice of intention nor the claim "was served in a manner complying with Court of Claims Act §11(a)" was rejected as too imprecise, because it "failed to allege sufficient facts to provide notice to the claimant as to how claimant failed to comply with the service requirements."
In the present case, defendant's third affirmative defense states merely that the claim is untimely in that it was not served within ninety (90) days of the accrual of the claim as required by Court of Claims Act Sections 10(3) and 11. It does not allege facts sufficient to provide notice to claimant that claimant's method of service was improper. By not pleading its jurisdictional defense with particularity, defendant has waived the same. Accordingly, its motion to dismiss the claim based upon a lack of jurisdiction is denied.
Defendant argues that the claim is barred due to res judicata because claimant filed an Article 78 proceeding based upon the exact same facts and claim asserted in this matter, and the Supreme Court found his claim to be without merit. Defendant asserted the doctrine of res judicata as its sixth affirmative defense in its Verified Answer to the subject claim (see Verified Answer at paragraph "NINTH"). Claimant, in opposition, states that there is a clear and undisputed distinction between the two claims, specifically that one seeks the correction of an unlawful act, and the other seeks compensation for an unlawful act.
The doctrine of res judicata will bar claims or issues that were actually litigated as well as those that could have been litigated in a prior proceeding (see Parker v Blauvelt Volunteer Fire Co., Inc., 93 NY2d 343 ; Pauk v Board of Trustees of City University of New York, 111 AD2d 17 [1st Dept 1985], affd 68 NY2d 702 ). In O'Brien v City of Syracuse (54 NY2d 353, 357 , the Court of Appeals stated, "once a claim is brought to final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or seeking a different remedy."
In the present case, claimant filed an Article 78 petition based upon the same facts and allegations which make up the instant claim. Said Article 78 petition was denied by the Supreme Court and no proof has been submitted to show that an appeal was taken or is pending. Accordingly, the Court finds that the claim has been brought to final conclusion and cannot be raised in this Court. Moreover, claimant cannot be compensated for an act which has not been deemed unlawful.
Based upon the foregoing, the Court finds Claim No. 115935 to be precluded by the doctrine of res judicata. However, even if the Court were to have found that the doctrine of res judicata is inapplicable, the Court would still dismiss the claim based upon the Court of Appeals' holding in People ex rel. Gill v Greene (12 NY3d 1 ), which settled the same issue asserted herein and interpreted the sentence at issue as being consecutive to the previous undischarged sentences, regardless of whether the sentencing court had said so or not.
Defendant's motion to dismiss (Motion No. M-77590) is therefore granted and Claim No. 115935 is hereby dismissed.
March 30, 2010
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
1. Notice of Motion, dated December 7, 2009, and Affirmation in Support of Thomas R. Monjeau, AAG, dated December 7, 2009, with Exhibits;
2. "Rebuttal to Notice of Motion", sworn to by Ervan Purnell on December 14, 2009.
Papers Filed: Claim, filed October 9, 2008; Order, filed November 7, 2008; Verified Answer, filed December 10, 2008.