Defendant's cross motion for dismissal of an unserved claim was granted and claimant's motion for an extension of time to serve a late claim and for summary judgment was granted to the limited extent of extending the time set forth in a prior Decision and Order for filing and service of a late claim and was otherwise denied.
|Claimant short name:||CODRINGTON|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Roger Codrington, Pro Se|
|Defendant's attorney:||Honorable Letitia James, Attorney General
By: Albert D. DiGiacomo, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||February 23, 2021|
|See also (multicaptioned case)|
Claimant, proceeding pro se, moves for an extension of the court-ordered time period to file and serve a late claim and appears to seek summary judgment on his pending claim. Defendant opposes the motion and cross-moves to dismiss the pending claim pursuant to CPLR 3211 (a) (2), (7) and (8) for lack of service.
Claimant, a former prison inmate, seeks damages for personal injuries allegedly sustained when a defective steel door slammed shut due to a gust of wind, severing the tip of his middle finger. Claimant alleges the accident occurred as he was exiting the housing area of the 2H Unit at Mid-State Correctional Facility on April 23, 2018. Although claimant filed the instant claim on July 20, 2018, by Decision and Order of the Hon. Richard E. Sise, A.P.J.C.C., entered in the Office of the Clerk of the Court of Claims on September 9, 2019, his motion for leave to file and serve a late claim was granted.
Inasmuch as defendant's cross motion is dispositive of the instant claim, it will be addressed first. Defendant contends in support of its dismissal motion that the claim was not served upon the Attorney General. This contention is supported by the affidavit of Debra L. Mantell, Legal Assistant II in the Albany Office of the Attorney General. Ms. Mantell states in her affidavit that it is the usual business practice of the Attorney General's Office to record the receipt of claims and notices of intention to file claims in its digital case-management system. Ms. Mantell states further that although the digital case-management system reflects the receipt of various correspondence relating to this matter, it does not reflect the receipt of a claim or notice of intention to file a claim.
The State's waiver of immunity under section 8 of the Court of Claims Act is conditioned upon compliance with the specific conditions to suit set forth in article II of the Court of Claims Act (Lepkowski v State of New York, 1 NY3d 201, 206 ). Among these conditions is the service requirement contained in Court of Claims Act § 11 (a) (i) which provides, in relevant part, that a copy of the claim "shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for filing with the clerk of the court." Failure to serve a claim upon the Attorney General is a non-waivable jurisdictional defect which divests this Court of subject matter jurisdiction (Caci v State of New York, 107 AD3d 1121 [3d Dept 2013]; Johnson v New York State, 71 AD3d 1355, 1355 [3d Dept 2010], lv denied 15 NY3d 703 ; cf. Court of Claims Act § 11 [c] [ii]).
Defendant established in support of its motion that the claim was not served upon the Attorney General as required by Court of Claims Act § 11 (a) (i). Claimant failed to oppose the motion and the affidavit of service attached to the filed claim fails to reflect service of the claim on the Attorney General. Absent proof of service by one of the methods prescribed by Court of Claims Act § 11 (a) (i), dismissal of Claim No. 131751 is required.
Turning to claimant's motion for an extension of time for filing and serving a late claim, CPLR 2004 permits the Court to "extend the time fixed by any . . . order for doing any act, upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed." Here, claimant established good cause for the delay in filing and serving the late claim. Claimant indicates that since his release from prison in June 2019, he has been transferred from one mens' homeless shelter to another. As a result, claimant has not been receiving his mail on a regular basis and it appears his receipt of the Decision and Order granting him permission to file a late claim was delayed. Inasmuch as the underlying statute of limitations has not expired, there exists no jurisdictional impediment to an extension of time to serve and file the late claim (see Canales v State of New York, 51 Misc 3d 648 [Ct Cl, 2015]; Gardner v City Univ. of N.Y., 41 Misc 3d 912 [Ct Cl 2013]). Accordingly, the Court will grant claimant's motion to the extent he seeks an extension of time to file and serve a late claim.
That branch of claimant's motion seeking summary judgment must be denied as academic. Even if the claim was not subject to dismissal for lack of service claimant's motion for summary judgment would nevertheless be denied as procedurally defective and substantively deficient. Issue was not joined and claimant failed to demonstrate the absence of material questions of fact through the submission of proof in admissible form (see CPLR 3212 [a]; Vega v Restani Constr. Corp., 18 NY3d 499 ).
Based on the foregoing, it is hereby
ORDERED that defendant's cross motion is granted and Claim No. 131751 is dismissed, and it is furtherORDERED that claimant's motion is granted to the limited extent of extending the time set forth in the Decision and Order of the Hon. Richard E. Sise, A.P.J.C.C, filed September 9, 2019, for the filing and service of a late claim to 60 days after the date this Decision and Order is filed. Filing and service of the claim must be made pursuant to the requirements of Court of Claims Act § § 10, 11, 11-a.
February 23, 2021
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims