New York State Court of Claims

New York State Court of Claims
RABB v. STATE OF NEW YORK, # 2021-051-034, Claim No. 132624, Motion No. M-96843, Cross-Motion No. CM-97185


Defendant's motion to dismiss medical malpractice claim granted because the claim was neither timely filed, nor properly served in compliance with Court of Claims Act 10 (3) and 11. Claimant's untimely application for permission to file a late claim is denied.

Case information

UID: 2021-051-034
Claimant(s): REGINALD RABB
Claimant short name: RABB
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 132624
Motion number(s): M-96843
Cross-motion number(s): CM-97185
Claimant's attorney: KRENTSEL & GUZMAN, LLP
Defendant's attorney: HON. LETITIA JAMES
New York State Attorney General
Assistant Attorney General
Third-party defendant's attorney:
Signature date: December 6, 2021
City: Rochester
Official citation:
Appellate results:
See also (multicaptioned case)


The following papers were read on defendant's motion to dismiss the claim (M-96843) and claimant's application to have claimant's late claim deemed timely served (CM-97185):

1. Notice of Motion with attached Affirmation of Kevin A. Grossman, AAG, with attached exhibits, filed May 19, 2021;

2. Affirmation in Opposition and Cross-Motion of Jonathan J. Panarella, Esq., with attached exhibits, filed September 7, 2021;

3. Filed papers: claim and answer.

Defendant moved to dismiss claimant's medical malpractice claim on dual procedural grounds that the claim was neither timely filed, nor served in compliance with Court of Claims Act 10 (3) and 11, and alternatively, because it was not served upon the Office of the Attorney General by certified mail return receipt requested per Court of Claims Act 11. In addition to opposing the defendant's motion to dismiss, claimant argued for the Court to deem his claim timely filed nunc pro tunc or for late claim relief. For the reasons detailed below, defendant's motion is granted.

The undisputed relevant facts are as follows. Claimant, an incarcerated individual for approximately 10 years, was diagnosed with lung cancer on March 22, 2018, 14 days after being released from Auburn Correctional Facility. Claimant served his claim for medical negligence and malpractice upon the Office of the Attorney General on June 22, 2018 by Federal Express. (defendant's attorney's affirmation, exhibit A, Mantell affidavit at 2, 5 and 8 [a].) The claim was not filed with the Clerk of the Court of Claims until February 8, 2019(1) . Defendant filed its verified answer on August 2, 2018 with 17 affirmative defenses, including the lack of subject matter jurisdiction because the claim was not filed within 90 days of accrual as required by Court of Claims Act 10 (3) and 11 (a), and it was served by Federal Express, which was not in compliance with Court of Claims Act 11 (a).

Failure to comply with the literal requirements of filing and service of claims set forth in 10 and 11 of the Court of Claims Act requires dismissal of this claim. In the absence of a timely notice of intent to file a claim, Court of Claims 10 (3) required claimant to file and serve his claim within 90 days of its accrual. Section 11 of the Court of Claims Act, entitled Filing, service and contents of claim or notice of intention, sets forth the requirements for commencing an action in the Court of Claims. It requires that "[t]he claim shall be filed with the clerk of the court; and . . . a copy 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." "It is well settled that nothing less than strict compliance with the jurisdictional requirements of the Court of Claims Act is necessary." (Zoeckler v State of New York, 109 AD3d 1133, 1133 [4th Dept 2013] [internal quotation marks and citations omitted].)

The Court finds that the defendant properly raised service in its answer and submitted a motion to dismiss supported by an affidavit attesting to claimant's failure to comply with Court of Claims Act 11. Claimant does not dispute he served his claim upon the Office of the Attorney General by Federal Express, a method not authorized by the Court of Claims Act. (Femminella v State of New York, 71 AD3d 1319, 1320 [3d Dept 2010].) Likewise, claimant does not dispute that he did not successfully file his claim with the Clerk of the Court until more than seven months after his cancer diagnosis.

Claimant's arguments in opposition to motion to dismiss did not address the dispositive issues raised therein. Defendant's application did not challenge the sufficiency of the pleading contained in the claim, nor did it argue that it didn't have timely notice of the allegations. Moreover, "a lack of prejudice to the State is an immaterial factor." (Wilson v State of New York, 61 AD3d 1367, 1368 [4th Dept 2009][internal quotation marks and citation omitted].) Claimant's assertion that the defendant failed to properly notify claimant of his deficiencies in filing and service of his claim is also without merit(2)

. A review of the answer confirms that defendant adequately notified claimant that his service of the claim by Federal Express did not secure subject matter jurisdiction over it. (answer, at 1, 4.) Likewise, defendant's second affirmative defense sufficiently raised the untimeliness of the filing of the claim. (id, 5.)

The Court is without discretionary power to grant nunc pro tunc relief with respect to service or filing of the claim. (see Chaudry v State of New York, 167 AD3d 704, 704 [2d Dept 2018]; Byrne v State of New York, 104 AD2d 782 [2d Dept 1984], lv denied 64 NY2d 607 [1985].) Furthermore, since "suits against defendant are permitted only by virtue of its waiver of sovereign immunity and are in derogation of the common law, the failure to strictly comply with the filing or service provisions of the Court of Claims Act divests the court of subject matter jurisdiction and compels dismissal of the claim." (Caci v State of New York, 107 AD3d 1121, 1122 [3d Dept 2013][internal quotation marks and citations omitted]; see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]; Rodriguez v State of New York, 307 AD2d 657, 657 [3d Dept 2003].) Accordingly, the Court must hold that it is without subject matter jurisdiction to hear this claim. Therefore, the Court has no alternative but to grant the relief requested by defendant and dismiss the claim.

With respect to the claimant's request that the Court accept its claim as a late claim per Court of Claims Act 10 (6), he has not properly initiated a cross-motion for relief in accordance with the requirements of the Uniform Rules for the Court of Claims, 22 NYCRR 206.8, CPLR 2214, CPLR 2215 or CCA 10 (6). CPLR 2215 pertains to cross-motions, and requires a notice of cross-motion. Uniform Rules for the Court of Claims 206.8 (a) provides, in part, that in addition to complying with the provisions of the CPLR, "no motion shall be filed with the court unless a notice of motion is served and filed, with proof of service, with the motion papers." As claimant has failed to comply with these requirements and rules for instituting a cross-motion, the Court is without jurisdiction to grant the requested relief (Vanek v Mercy Hosp., 135 AD2d 707, 707 [2d Dept 1987]; J.A. Valenti Elec. Co. v Power Line Constructors, 123 AD2d 604, 604 [2d Dept 1986]; see Smith v State of New York, UID No. 2017-040-120 [Ct Cl, McCarthy, J., Sept. 11, 2017]; see also Perretti v State of New York, 2012-045-023 [Ct Cl, Lopez-Summa, J., July 10, 2012].) However, even if the Court overlooked this requirement, claimant did not submit the information required for a motion for permission to file a late claim set forth in Court of Claims Act 10 (6).

In light of the above, defendant's motion to dismiss (M-96843) is granted and Claim No. 132624 is dismissed and claimant's application for relief (CM-97185) is denied.

December 6, 2021

Rochester, New York


Judge of the Court of Claims

1. The Court examined the Court Clerk's file and uncovered the complete history of claimant's numerous attempts to file his claim. The history is found in the letter from the Clerk of the Court of Claims to claimant's attorney, dated November 28, 2018. It provided that a claim was received by the Clerk of the Court on June 22, 2018 without a filing fee and was therefore returned to claimant's attorney on June 26, 2018. A second attempt at filing was unsuccessful on November 9, 2018 when the clerk rejected it because it was a notice of claim against the City of New York and the New York City Department of Corrections. The Court notes that the claim that was finally accepted on February 8, 2019 identifies the wrong claimant on page two.

2. Claimant's reference to General Municipal Law 50-E is erroneous. Nevertheless, Court of Claims Act 11 (3) imposed upon defendant to either make a pre-answer notice to dismiss or state objections in its responsive pleading as to service.