|Claimant short name:||NORRELL|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||RAMÓN E. RIVERA|
|Claimant's attorney:||DARYL NORRELL
|Defendant's attorney:||LETITIA JAMES
Attorney General of the State of New York
By: Ray A. Kyles, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 4, 2021|
|See also (multicaptioned case)|
Defendant brings a motion for summary judgment and dismissal of the claim pursuant to CPLR sections 3211 (a) (2), (7), (8), and Court of Claims Act section 10 (3), on grounds that the Court lacks subject matter jurisdiction over the claim, lacks personal jurisdiction over the Defendant, and fails to state a cause of action. Claimant has not responded to the motion. For the reasons set forth below, Defendant's motion is granted.
By way of letter dated September 12, 2016, Claimant served a notice of intention to file a claim and a claim via certified return receipt mail to the New York State Attorney General's Office received at that office on September 14, 2016 (see copy of Claimant's Letter, notice of intention and claim, with the envelope and stamped receipt, Exhibit A). The claim alleges that on June 12, 2016 Claimant, while incarcerated at Cape Vincent Correctional Facility ("Cape Vincent"), was working in the mess hall wearing protective gloves when he sustained burns and endured considerable pain and suffering to his left hand after lifting the top off a large kettle to pour hot water into a pail, when steam from the kettle burned his left hand. Claimant also alleges that the State of New York was "intentionally neglecting" to provide Claimant with proper kitchen and cooking equipment causing Claimant damage and injuries as a result and that the State also failed to provide him with proper medical attention.
According to the provisions of the Court of Claims Act applicable to personal injuries caused by negligence or unintentional tort of an officer or employee of the state while acting in such capacity, Claimant was required to file and serve his claim within 90 days from the date of accrual unless a written notice of intention to file a claim was served upon the Attorney General within such time period (Court of Claims Act section 10 ). In event of the latter, the claim itself has to be filed and served upon the Attorney General within two years of the accrual of the claim. Either option however requires service within 90 days of the claim's accrual. Court of Claims Act section 11 (a) (i) states that a claim shall be filed with the Clerk of the Court and a copy shall be served upon the Attorney General within the same time period provided in section 10 of the Court of Claims Act either in person or by certified mail, return receipt requested. Furthermore, the statute provides that service by certified mail, return receipt requested, is not complete until the claim or notice of intention to file a claim is received by the Attorney General. Failure to timely serve the Attorney General in strict compliance with Court of Claims Act sections 10 and 11 results in a defect of subject jurisdiction (see, Lepkowski v State of New York, 1 NY3d 201, 206-207 ; Finnerty v New York State Thruway Auth., 75 NY2d 721, 723 ; Jones v State of New York, 171 AD3d 1362 [3d Dept 2019]; Zoeckler v State of New York, 109 AD3d 1133 [4th Dept 2013]; Suarez v. State of New York, 193 AD2d 1037, 1038 [3d Dept, 1993]; Wilson v State of New York, UID 2018-040-063 [Ct. Cl, McCarthy, Christopher J., July 18, 2018]).
Court of Claims Act section 11 (c) however states that this jurisdictional defect- untimely service- is waived unless it is raised with particularity as an affirmative defense, either by motion to dismiss prior to service of the responsive pleading, or in the responsive pleading itself (see, Knight v State of New York, 177 Misc. 2d 181, 183 [Ct. Cl 1998]; Wilson, UID No. 2018-040-063 [Ct. Cl, McCarthy, Christopher J., July 18, 2018]). In its verified answer filed with the Clerk of the Court on October 21, 2016, Defendant asserted as its first affirmative defense that the "[n]otice of intention and accompanying [c]laim are untimely [because] Court of Claims Act § 10 requires that the notice of intention and/or claim be served within 90 days of accrual of the incident. In this instance, both the notice of intention and claim were received 92 days after the alleged incident."(1) Thus, Defendant has adequately preserved the objection to timely service of the notice of intention and claim.
In his Affirmation in support of Defendant's motion, defense counsel states "[a] letter, Notice of Intention to file a Claim, and Claim were sent by certified mail, return receipt requested, [and was] received by the Office of the Attorney General [on] September 14, 2016 (Affirmation of Ray A. Kyles, Esq., Assistant Attorney General, paragraph 3.) Defendant has also attached a copy of the envelope reflecting the mailing on September 12, 2016, and Claimant's letter stamped as received by the "NYS Office of the Attorney General Claims Bureau" on September 14, 2016. (Defendant's Exhibit A) Defendant has established that the claim was not timely served.
Accordingly, based upon the foregoing, Defendant's motion is GRANTED and the claim is DISMISSED.
November 4, 2021
Syracuse, New York
RAMÓN E. RIVERA
Judge of the Court of Claims
The Court has considered the following in deciding this motion:
1) Notice of Motion
2) Affirmation of Ray A. Kyles, Esquire, Assistant Attorney General, in support, with exhibits attached thereto.
1. The notice of intention and claim were actually received 94 days after the date of accrual. The date of accrual was September 10, 2016, a Saturday, so service would have been timely on September 12, 2016 (General Construction Law section 25-a ).