New York State Court of Claims

New York State Court of Claims
BENNETT v. DIVISION OF PAROLE, # 2020-038-590, Claim No. 135347, Motion No. M-96162

Synopsis

Defendant's pre-answer motion to dismiss the claim for lack of jurisdiction granted. with respect to wrongful confinement cause of action, each of the three notices of intentions to file a claim served on the Attorney General was jurisdictionally defective and thus did not extend claimant's time to file and serve the claim. Although defendants motion did not address the remaining causes of action, the Court sua sponte dismissed the remainder of the claim for lack of subject matter jurisdiction, as it patently failed to comply with Court of Claims Act 11 (b).

Case information

UID: 2020-038-590
Claimant(s): ANTONIO BENNETT a/k/a ANTHONY WILLIAMS
Claimant short name: BENNETT
Footnote (claimant name) :
Defendant(s): DIVISION OF PAROLE
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 135347
Motion number(s): M-96162
Cross-motion number(s):
Judge: W. BROOKS DeBOW
Claimant's attorney: ANTONIO BENNETT a/k/a ANTHONY WILLIAMS, Pro se
Defendant's attorney: LETITIA JAMES, Attorney General
of the State of New York
By: Glenn C. King, Assistant Attorney General
Third-party defendant's attorney:
Signature date: December 23, 2020
City: Saratoga Springs
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant, an individual formerly incarcerated in a State correctional facility, filed this claim alleging various causes of action that arose at various State correctional facilities over the course of twelve years. Defendant makes this pre-answer motion to dismiss the claim for lack of jurisdiction. Claimant opposes the motion.

The claim alleges causes of action sounding in wrongful confinement, breach of contract, negligence, and "appropriation(s)" that accrued at Downstate Correctional Facility (CF), Woodbourne CF, Attica CF, Clinton CF, and Elmira CF between April 6, 2005 and November 6, 2017 (see Claim No. 135347, 2-4). The claim contains no factual allegations elaborating on those causes of action, nor does it link any of the causes of action to specific correctional facilities or dates, and it seeks $40 million in damages.

Defendant now makes this pre-answer motion to dismiss the claim as untimely, arguing that although claimant served three notices of intention to file a claim on the Attorney General prior to filing and serving the claim, each of the notices of intention was jurisdictionally defective and thus did not extend the time for claimant to file and serve the claim beyond 90 days from the date of accrual (see King Affirmation, 9-11). Defendant further argues that even if claimant had properly served a timely notice of intention, the claim would nevertheless be untimely inasmuch as it was served on the Attorney General on September 17, 2020, which, based upon the latest possible accrual date alleged in the claim of November 6, 2017, was well past the extended time periods for filing and service provided for in Court of Claims Act 10 (3) and (3-b), and the one-year statute of limitations for a cause of action sounding in wrongful confinement pursuant to CPLR 215 (3) (see id. at 12). Claimant opposes the motion in a submission that contains no substantive argument but consists almost entirely of definitions of various terms, both legal and non-legal (see Undated Bennett Submission, filed Nov. 27, 2020).(1)

As an initial matter, the Court notes that defendant has sought to dismiss the claim on timeliness grounds only insofar as it asserts a cause of action sounding in wrongful confinement (see King Affirmation, 3, 12), even though it also clearly asserts causes of action sounding in breach of contract, negligence, and appropriations (see Claim No. 135347, 2). Defendant has thus waived any timeliness objections to those causes of action (see Court of Claims Act 11 [c] [i]). Therefore, the Court will consider defendant's arguments that the claim is untimely only as to the wrongful confinement cause of action.

Court of Claims Act 10 (3-b) provides that a claim against the State sounding in intentional tort must be filed with the Clerk of the Court of Claims and served on the Attorney General within 90 days of accrual. A notice of intention to file a claim served on the Attorney General within 90 days of accrual will extend the time within which to serve and file a claim to one year for a claim sounding in intentional tort (see Court of Claims Act 10 [3-b]). As noted above, claimant has asserted a cause of action sounding wrongful confinement, which typically sounds in intentional tort (see Manuel v State of New York, UID No. 2018-038-561 [Ct Cl, DeBow, J., June 21, 2018]; Nanton v State of New York, UID No. 2017-038-578 [Ct Cl, DeBow, J., Oct. 12, 2017]), and accrues upon claimant's release from that confinement (see Campos v State of New York, 139 AD3d 1276, 1277 [3d Dept 2016]; Davis v State of New York, 89 AD3d 1287, 1287 [3d Dept 2001]; Miranda v State of New York, 42 Misc 3d 1226[A], 2012 NY Slip Op 52505[U], [Ct Cl 2012], affd 113 AD3d 943 [3d Dept 2014]), and it is subject to a one-year statute of limitations under CPLR 215 (3).

Court of Claims Act  11 (b) mandates that a notice of intention "shall be verified in the same manner as a complaint in an action in the supreme court." When a defendant is entitled to a verified pleading and is served with a defectively verified or unverified pleading, the defendant "may treat it as a nullity provided that the recipient 'with due diligence' returns the [pleading] with notification of the reasons(s) for deeming the verification defective (CPLR 3022)" (Matter of Miller v Board of Assessors, 91 NY2d 82, 86 [1997]; see also Lepkowski v State of New York, 1 NY3d 201, 210 [2003]). The requirements of Court of Claims Act  11 (b) are jurisdictional conditions to lawsuits against the State (see Lepkowski, 1 NY3d at 206-207), and "nothing less than strict compliance with the jurisdictional requirements of the Court of Claims Act is necessary" (Kolnacki v State of New York, 8 NY3d 277, 281 [2007], rearg denied 8 NY3d 994 [2007]). The Court of Claims Act provides that:

"Any objection or defense based upon failure to comply with . . . the verification requirements as set forth in subdivision b of this section 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, and if so waived the court shall not dismiss the claim for such failure."

(Court of Claims Act 11 [c] [iii]).

Here, as noted above, defendant has submitted three notices of intention to file a claim that were served on the Attorney General in advance of the filing and service of the claim. In support of the instant motion, defendant has demonstrated that claimant served the first notice of intention to file a claim on the Attorney General on July 1, 2016, and it was rejected on July 6, 2016 for lack of verification (see King Affirmation, 4, Exhibit A [Attorney General Correspondence, dated July 6, 2016; Notice of Intention, undated]). Defendant returned the unverified notice of intention shortly after it was served, as required under the CPLR and the Court of Claims Act, and promptly filed this motion to dismiss the claim. Defendant thus has shown that it rejected the unverified notice of intention with due diligence as required by CPLR 3022, and claimant has not controverted that showing. Because the notice of intention was not verified as required by Court of Claims Act 11 (b), it was a nullity and could not serve as a basis for extending claimant's time to file and serve the wrongful confinement claim (see Wearing v State of New York, UID No. 2016-041-068 [Ct Cl, Milano, J., Aug. 24, 2016]), which was not accomplished until September 16, 2020 and September 17, 2020, respectively (see Claim No. 135347; King Affirmation, Exhibit D), well beyond 90 days after the latest possible accrual date alleged in the claim of November 6, 2017 (see Claim No. 135347, 4).

Court of Claims Act 11 (a) (i) requires that if a notice of intention is served upon the Attorney General by mail, it must be accomplished by certified mail, return receipt requested (CMRRR). As noted above, it is well established that 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 [1989]; Martinez v State of New York, 282 AD2d 580, 580 [2d Dept 2001], lv denied 96 NY2d 720 [2001]). Service of the notice of intention by ordinary mail is insufficient to acquire personal jurisdiction over the defendant (see Fulton v State of New York, 35 AD3d 977, 978 [3d Dept 2006], lv denied 8 NY3d 809 [2007]; Thomas, 144 AD2d at 882), and a notice of intention that is improperly served by regular mail is a nullity and does not serve to extend the time within which to file and serve the claim (see Roesch v State of New York, UID No. 2020-058-039 [Ct Cl, Leahy-Scott, J., Sept. 17, 2020]; Montero v State of New York, UID No. 2018-054-061 [Ct Cl, Rivera, J., June 20, 2018]; LaPrade v State of New York, UID No. 2018-040-051 [Ct Cl, McCarthy, J., 2018]).

In support of its motion to dismiss, defendant has shown that although the first notice of intention, which was rejected for lack of verification, was served on the Attorney General by CMRRR (see King Affirmation, Exhibit A), the second notice of intention was served on the Attorney General by regular mail on August 12, 2016 (see King Affirmation, 4 [b], 10). The envelope in which the second notice of intention was served on the Attorney General bears postage indicating that it was served by regular, first class mail, with no indicia that it was served by CMRRR (see id., Exhibit B). Claimant has failed to controvert that showing in his submissions in opposition to the motion. Because the second notice of intention was improperly served by regular mail, it was insufficient to extend claimant's time to file and serve the wrongful confinement claim. Inasmuch as the claim was filed and served well more than 90 days beyond the latest possible accrual date alleged in the claim, the wrongful confinement claim was untimely.

As discussed above, a notice of intention to file a claim served on the Attorney General within 90 days of the accrual of a cause of action sounding in intentional tort will extend the time within which to serve and file a claim to one year for a claim sounding in intentional tort (see Court of Claims Act 10 [3-b]). Here, defendant has demonstrated in support of the instant motion that the third notice of intention related to this claim was served on the Attorney General on April 13, 2018 (see King Affirmation, 4 [c], 10, Exhibit C]). However, as previously noted, the latest possible accrual date alleged in the claim was November 6, 2017. The third notice of intention was thus untimely inasmuch as it was served well beyond 90 days after that date, and it was insufficient to extend claimant's time to file and serve the wrongful confinement claim (see Gotham v State of New York, UID No. 2020-038-507 [Ct Cl, DeBow, J., Jan. 21, 2020]). As noted above, the claim was filed on September 16, 2020 and served on September 17, 2020, almost three years beyond the latest possible accrual date alleged in the claim of November 6, 2017, and the claim was thus jurisdictionally defective as it was untimely filed and served more than 90 days after its accrual. Even if any of the notices of intention had been properly served on the Attorney General, the claim was filed and served more than the extended time period of one year for the wrongful confinement claim pursuant to Court of Claims Act 10 (3-b), and thus would have been jurisdictionally defective regardless of the timeliness of the notices of intention. The Court thus lacks subject matter jurisdiction over the wrongful confinement claim, and it must be dismissed with respect to those claims (see Shattuck v State of New York, UID No. 2020-015-026 [Ct Cl, DeBow, J., Feb. 25, 2020]; Chavez v State of New York, UID No. 2019-038-590 [Ct Cl, DeBow, J., Oct. 3, 2019]; Wisdom v State of New York, UID No. 2019-038-531 [Ct Cl, DeBow, J., Apr. 15, 2019]).

Although defendant has not addressed the remaining causes of action sounding in breach of contract, negligence and appropriations, the claim raises subject matter jurisdiction concerns that will be considered by the Court sua sponte (see Signature Health Ctr., LLC v State of New York, 42 AD3d 678, 679 [3d Dept 2007] ["(a) court may, sua sponte, raise issues regarding its subject matter jurisdiction"]; Lublin v State of New York, 135 Misc 2d 419, 421 [Ct Cl 1987], affd 135 AD2d 1155 [1st Dept 1987], lv denied 71 NY2d 802 [1988] [defenses related to the Court's subject matter jurisdiction over a claim "are never waived, may be raised at any time and even sua sponte by the Court" (emphasis in original)]). The subject matter jurisdictional pleading requirements of the Court of Claims Act requires, among other things, that "[t]he claim shall state the time when and place where such claim arose, the nature of same, [and] the items of damage or injuries claimed to have been sustained" (Court of Claims Act 11 [b]). The pleading must set forth sufficient facts to satisfy each of the pleading requirements set forth in Court of Claims Act 11 (b) (see Kolnacki, 8 NY3d at 280-281), and the failure to do so is a fatal defect in subject matter jurisdiction requiring dismissal of the claim (see Lepkowski, 1 NY3d at 209; see also Kolnacki, 8 NY3d at 281). The purpose of the pleading requirements of Court of Claims Act 11 (b) is "to enable the State . . . to investigate the claim[s] promptly and to ascertain its liability under the circumstances" (Lepkowski, 1 NY3d at 207 [internal quotation marks omitted]). "Although absolute exactness is not required, the claim must provide a sufficiently detailed description of the particulars of the claim . . . [and] defendant is not required to ferret out or assemble information that section 11 (b) obligates the claimant to allege" (Morra v State of New York, 107 AD3d 1115, 1115-1116 [3d Dept 2013] [internal quotations and citations omitted]).

Even when given the liberal review accorded to submissions of pro se litigants (see Ali v State of New York, UID No. 2006-028-516 [Ct Cl, Sise, P.J., Feb. 7, 2006]), this pleading is manifestly non-compliant with Court of Claims Act 11 (b). As noted above, this rambling and conclusory claim is bereft of any factual allegations as to the nature of defendant's liability that would enable defendant to investigate the claim and ascertain its liability. Moreover, other than alleging that the claim accrued between April 6, 2005 and November 6, 2017, the claim completely omits any of the dates and times of the alleged actions of defendant's agents. Although the claim identifies five correctional facilities as the places where the alleged acts took place, it fails to identify the precise locations within those facilities to permit defendant to investigate the claim. Lastly, the claim completely fails to identify any items of damage or injuries sustained. In sum, the claim wholly and completely fails to satisfy Court of Claims Act 11 (b), and it must be dismissed.

Accordingly, it is

ORDERED, that defendant's motion number M-96162 is GRANTED, and claim number 135347 is hereby DISMISSED.

December 23, 2020

Saratoga Springs, New York

W. BROOKS DeBOW

Judge of the Court of Claims

Papers considered:

1. Claim No. 135347, filed September 16, 2020;

2. Notice of Motion to Dismiss, dated November 4, 2020;

3. Affirmation of Glenn C. King, AAG, in Support of Motion to Dismiss, dated November 4, 2020, with Exhibits A-E;

4. Undated Submission of Antonio Bennett, filed November 27, 2020;

5. Undated Submission of Antonio Bennett, filed November 30, 2020;

6. Undated Submission of Antonio Bennett, filed December 4, 2020.


1. Claimant filed and served two additional submissions in opposition to the instant motion to dismiss, both of which are substantially similar to the November 27, 2020 submission (see Undated Bennett Submission, filed Nov. 30, 2020; Undated Bennett Submission, filed Dec. 4, 2020). All three submissions appears to be accompanied by the identical affidavit of service. The Court notes that none of claimant's three submissions in opposition to defendant's motion to dismiss was timely inasmuch as defendant demanded in its notice of motion that any answering affidavits be served at least seven days before the return date of the motion, pursuant to CPLR 2214 (b) (see Notice of Motion, dated Nov. 4, 2020). However, in the interest of all parties being heard, the Court has reviewed and considered each of claimant's three submissions.