Motion to dismiss claim for failure to serve by CMRRR granted. Claimant's cross motion for permission to file a late claim is granted; Court of Claims Act § 10 (6) does not require a proposed claim accompanying a motion for late claim relief to be verified if the appearance of factor merit is addressed in a supporting affidavit.
|Claimant short name:||WARD|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||CARLOS WARD, Pro se|
|Defendant's attorney:||BARBARA D. UNDERWOOD, Attorney General
of the State of New York
By: Jeane L. Strickland Smith, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 27, 2018|
|See also (multicaptioned case)|
Claimant, an individual incarcerated in a State correctional facility, filed this claim seeking compensation for injuries he allegedly sustained when he fell while exiting a shower at Green Haven Correctional Facility (CF). Defendant moves in lieu of answer to dismiss the claim for lack of jurisdiction upon the ground that the claim was not served upon the Attorney General by certified mail, return receipt requested. Claimant opposes the motion and cross-moves for permission to file a late claim.
Court of Claims Act § 11 (a) (i) requires that if a claim is served upon the Attorney General by mail, it must be accomplished by certified mail, return receipt requested (CMRRR). The service requirements of the Court of Claims Act must be strictly construed (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 ), and service of the claim by ordinary mail is insufficient to acquire personal jurisdiction over the defendant (see Govan v State of New York, 301 AD2d 757, 758 [3d Dept 2003], lv denied 99 NY2d 510 ). The failure to effect service by CMRRR is a jurisdictional defect that requires dismissal of the claim (see Turley v State of New York, 279 AD2d 819 [3d Dept 2001], lv denied 96 NY2d 708 ; Philippe v State of New York, 248 AD2d 827 [3d Dept 1998]; Estrella v State of New York, UID No. 2008-018-634 [Ct Cl, Fitzpatrick, J., Sept. 3, 2008]).
In support of its motion to dismiss, defendant has demonstrated that the claim was served upon the Attorney General not by CMRRR, but by regular first class mail (see Smith Affirmation, ¶ 4; Exhibit B). In opposition, claimant does not dispute that the claim was served by ordinary mail, but asserts that he properly served a notice of intention to file a claim by CMRRR and requests that the Court treat the notice of intention as a claim under Court of Claims Act § 10 (8). However, claimant's request to treat the notice of intention as the claim will be denied because the request was submitted in reply to defendant's motion, and not "made upon motion" as required by Court of Claims Act § 10 (8) (a). Thus, the claim must be dismissed as claimant failed to obtain personal jurisdiction over defendant.
Turning to claimant's cross motion for permission to file a late claim, Court of Claims Act § 10 (6) requires the Court to consider, among other factors, "whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy." The presence or absence of any particular factor is not controlling (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979, 981 ), and the weight accorded the various factors is a matter within the discretion of the Court.
The proposed claim, which is identical to claim number 131625, alleges that on July 5, 2016, after completing a shower at Green Haven CF, claimant slipped and fell while reaching for a towel on a metal hook that was located outside the shower. The proposed claim alleges that claimant slipped and lost his balance on a ledge with an elevation of eight to nine inches that separated the shower from the bathroom and that there were no railings in the vicinity or mats on the floor. The proposed claim alleges that claimant's left knee, left shoulder and back were injured in the fall and that x-rays indicated that he had not sustained any broken bones. The proposed claim alleges that claimant requested an MRI, but was given ibuprofen and told to sign up for sick call if the pain did not subside, prompting claimant to file a grievance. The proposed claim alleges that claimant signed up for sick call on July 18, 2016 and requested a back and knee brace, which was denied, that claimant's renewed requests for MRIs on two occasions were again denied, and that he was prescribed physical therapy for his injuries. The proposed claim alleges that an MRI performed on April 22, 2018 revealed injuries to claimant's left knee, and that defendant's agents were negligent in failing to ensure that the shower area was safe and in failing to follow proper medical protocols to treat his injuries.
Claimant asserts that the delay in filing the claim is excusable because he is a non-lawyer, had limited access to legal materials and was litigating this matter pro se in Article 78 proceedings. Claimant's status as an incarcerated pro se litigant does not provide an adequate excuse for the failure to timely file and serve the claim (see Matter of Robinson v State, 35 AD3d 948, 950 [3d Dept 2006]; Matter of Sandlin v State of New York, 294 AD2d 723 [3d Dept 2002], lv dismissed 99 NY2d 589 ; Matter of Thomas v State of New York, 272 AD2d 650, 651 [3d Dept 2000]). Claimant's argument that the delay is excusable is undermined by his timely filing but improper service of claim number 131625 after the proper and timely service of a notice of intention. Thus, the lack of an acceptable excuse for the untimely filing of this claim weighs against granting claimant's cross motion.
Whether the State had notice of the essential facts constituting the claim and had an opportunity to investigate the circumstances underlying the claim, and whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the State are closely related, and may be considered together (see Conroy v State of New York, 192 Misc 2d 71, 72 [Ct Cl 2002]; Brewer v State of New York, 176 Misc 2d 337, 342 [Ct Cl 1998]). Claimant argues that the State had notice of the essential facts of this claim "during the ongoing administrative appeal and Article 78 proceedings about this matter, which provided the State with ample and adequate time to review the essential facts concerning the claim" (Ward Affidavit, ¶ 3), and that any delay would not result in substantial prejudice. In the absence of any argument from defendant concerning any of the three factors, and in view of the fact that claimant timely served a notice of intention on defendant concerning the slip and fall allegations, and in the absence of any apparent prejudice to defendant, these three factors weigh in favor of granting claimant's cross motion.
The appearance of merit to a proposed claim is perhaps the most significant factor for the Court to consider because Court of Claims Act § 10 (6) reflects a legislative determination that the Court of Claims should permit a potential litigant to have his or her day in court if the claim is not lacking in merit (see Calzada v State of New York, 121 AD2d 988, 989 [1st Dept 1986]; Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]). In general, a party seeking to establish the merit of a proposed late claim need not demonstrate a likelihood that he will prevail on his claim. Rather, a proposed claim has an appearance of merit within the meaning of Court of Claims Act § 10 (6) if: (1) the proposed claim is not patently groundless, frivolous or legally defective; and (2) all of the evidence submitted on the motion establishes reasonable cause to believe that a valid cause of action exists (see Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]). Claimant argues that the proposed claim has the appearance of merit because the evidence and testimony at a disciplinary hearing "involved contradictory facts and show a clear violation of Directive 4932, Parts 250-254" (Ward Affidavit, ¶ 4). Defendant argues that the proposed claim lacks the appearance of merit because it asserts general allegations of negligence.
Allegations that defendant was negligent in failing to provide railings to hold onto or to place mats on the floor to reduce the presence of water on the floor, and that defendant's agents were negligent or committed medical malpractice in its delayed treatment of his injuries can be easily gleaned from the proposed claim. Thus, "[c]ontrary to defendant's contention, the facts alleged by claimant were sufficient to apprise it of the general nature of the [allegations] and to enable it to investigate the matter" (Demonstoy v State of New York, 130 AD3d 1337, 1338 [3d Dept 2015]). Defendant makes the unpersuasive argument that the proposed claim is flawed because it is unverified (see Strickland Smith Affirmation, ¶ 7), but Court of Claims Act § 10 (6) does not require a proposed claim submitted on a motion for late claim relief to be verified. Rather, there is no need for the proposed claim to be verified, where, as here, the motion is supported by claimant's sworn affidavit that addresses the appearance of merit factor (compare Jenkins v State of New York, UID No. 2003-030-910 [Ct Cl, Scuccimarra, J., Dec. 30, 2003] [unverified proposed claim insufficient to support late claim motion in absence of affidavit or other evidentiary support for appearance of merit]). The proposed claim has the appearance of merit within the meaning of Court of Claims Act § 10 (6), which weighs in favor of claimant's cross motion.
Defendant offers no response to claimant's assertion that he has no other available remedy, and thus, this factor weighs in favor of granting claimant's cross motion.
Having considered and weighed all of the factors set forth in Court of Claims Act § 10 (6), the Court finds that five of the six statutory factors, including the crucial factor of appearance of merit, weigh in favor of granting the motion for late claim relief, and thus the Court determines that claimant's cross motion should be granted.
Accordingly, it is
ORDERED, that motion number M-92561 is GRANTED, and claim number 131625 is DISMISSED; and it is further
ORDERED, that motion number CM-92718 is GRANTED; and it is further
ORDERED, that claimant shall file and serve the proposed claim that accompanies motion number CM-92718 in a manner required by the Court of Claims Act, and shall do so within thirty (30) days of the filing date of this Decision and Order.
November 27, 2018
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Claim number 131625, filed June 22, 2018;
(2) Notice of Motion to Dismiss, dated July 17, 2018;
(3) Affirmation of Jeane L. Strickland Smith, AAG, in Support of Motion to Dismiss, dated
July 17, 2018, with Exhibits A-B;
(4) Reply of Carlos Ward to Motion to Dismiss and in Support of Cross Motion to File a Late
Claim, sworn to August 8, 2018;
(5) Notice of Motion for Permission to File a Late Claim, dated August 8, 2018;
(6) Affidavit of Carlos Ward in Support of Motion for Permission to File a Late Claim, sworn to
August 8, 2018, with Proposed Claim;
(7) Affirmation of Jeane L. Strickland Smith, AAG, in Opposition to Motion to File a Late
Claim, dated September 13, 2018, with Exhibits A-B;
(8) Reply of Carlos Ward to Defendant's Opposition to Motion for Permission to File a Late
Claim, sworn to September 24, 2018.