Opinion
# 2017-053-519 Claim No. 127023 Motion No. M-89006
04-25-2017
RALPH PALADINO v. THE STATE OF NEW YORK
RALPH PALADINO, Pro Se HON. ERIC T. SCHNEIDERMAN New York State Attorney General BY: Joseph L. Paterno Assistant Attorney General
Synopsis
Pre-Answer motion by State to dismiss claim for lack of jurisdiction is denied. Court finds claimant to be under a legal disability and entitled to the two year tolling provision of Court of Claims Act § 10 (5).
Case information
| UID: | 2017-053-519 |
| Claimant(s): | RALPH PALADINO |
| Claimant short name: | PALADINO |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption has been amended sua sponte to reflect the only proper defendant |
|---|---|
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 127023 |
| Motion number(s): | M-89006 |
| Cross-motion number(s): | |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | RALPH PALADINO, Pro Se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General BY: Joseph L. Paterno Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | April 25, 2017 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant Ralph Paladino, a former inmate proceeding pro se, alleges in claim no. 127023 that he was deliberately dragged from an airplane at John F Kennedy Airport (JFK Airport) by New York State parole officers and taken into custody on April 30, 2014. In lieu of answering the claim, defendant moves to dismiss the claim for lack of jurisdiction. Claimant opposes defendant's motion and requests permission to file a late claim.
Claimant's name is misspelled in defendant's motion papers as Paldino.
Defendant's motion was originally filed in December of 2015, but was held in the motion unit until a filing fee issue was resolved. The claim was eventually transferred to my chambers and the motion placed on my February 2017 motion calendar.
In his unsworn answer to defendant's motion and notice of motion, claimant requests that the Court grant him "permission for a late notice of claim." Nothing in the Court of Claims Act allows a Court to permit the late service of a notice of intention to file a claim. Pursuant to Court of Claims Act § 10 (6), a Court may grant leave for a claimant to file and serve a late claim after considering the several factors enumerated in the statute. Claimant has failed to discuss these factors.
Court of Claims Act § 10 (3-b) provides that a claim must be filed and a copy served personally or by certified mail, return receipt requested, upon the Attorney General within ninety (90) days of accrual of the claim unless within the same ninety (90) day period, claimant shall serve upon the Attorney General a notice of intention to file a claim in which event the claim must be filed and served within one year of accrual of an intentional tort. Court of Claims Act § 11 (a) (i) provides that service upon the Attorney General by certified mail, return receipt requested, is not complete until the claim or notice of intention being served is received in the office of the Attorney General. The requirements of sections 10 and 11 of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]). The failure to timely or properly serve a copy of the claim upon the Attorney General divests the Court of jurisdiction requiring the dismissal of the claim (Dreger v New York State Thruway Auth., 81 NY2d 721 [1992]).
The claim accrued on April 30, 2014 when claimant was removed from the airplane and allegedly assaulted by parole officers attempting to take him into custody, Thus, to be timely, claimant had to file and serve a claim or serve a notice of intention to file a claim within ninety (90) days, or by July 29, 2014. On December 1, 2014, more than ninety (90) days after the claim accrued, claimant served upon the Attorney General a notice of intention to file a claim. The notice of intention was served by certified mail, without a return receipt requested (see defendant's exhibit A). In that the notice of intention was untimely served and served by an unauthorized method of service, the notice of intention did not extend claimant's time within which to serve and file a claim (Femminella v State of New York, 71 AD3d 1319 [3d Dept 2010]; Adams v State of New York, UID No. 2016-041-015 [Ct Cl, Milano, J., March 29, 2016]). As a result, the claim subsequently filed on November 12, 2015 and properly served upon the Attorney General on November 30, 2015, by certified mail, return receipt requested, was jurisdictionally deficient as it was filed and served more than ninety (90) days after the claim accrued.
In opposition to defendant's motion, claimant argues that his notice of intention was timely served as his ninety (90) days within which to serve his notice of intention did not begin to run on April 30, 2014, the date of accrual, but on July 24, 2014 when he was placed in the general population and finally had access to a law library. Claimant further argues that October 12, 2014 should be recognized as the service date as it was the date claimant mailed his notice of intention to the Attorney General. The lack of access to a law library has never been considered an appropriate excuse for failing to timely file and serve a claim (Matter of Sandlin v State of New York, 294 AD2d 723 [3d Dept 2002], lv dismissed 99 NY2d 589 [2003]). Moreover, as defendant argues, claimant's opposition is actually a request for nunc pro tunc relief which is unavailable under the Court of Claims Act (see Byrne v State of New York, 104 AD2d 782 [2d Dept 1984], lv denied 64 NY2d 607 (1985).
Based on the foregoing, the claim would have to be dismissed for lack of jurisdiction as being untimely served and filed unless claimant is a person under a legal disability entitled to the tolling provisions of Court of Claims Act § 10 (5) (see Boland v State of New York, 30 NY2d 337 [1972]; Ferrucci v State of New York, 30 NY2d 859 [1972]). Section 10 (5) provides that "[i]f the claimant shall be under legal disability, the claim may be presented within two years after such disability is removed." In his claim, claimant alleges that he was dragged from the plane after he had attempted suicide in the bathroom of a plane at JFK Airport. In his unsworn statement in opposition to defendant's motion to dismiss the claim, claimant states that he cut both of his wrists with a razor blade in the bathroom of the plane and was barely conscious when he was arrested and assaulted. He then states that he was taken to Jamaica Hospital and three days later transferred to the psychiatric center at Bellevue Hospital (Bellevue). On May 26, 2014, claimant states that he was transferred from Bellevue to the Anna M. Kross Center (Kross Center) at Rikers Island for treatment and placed in the mental observation unit.
Attached to claimant's unsworn statement as exhibit 1 is a mental health status notification and observation transfer form indicating that on May 16, 2014, claimant was placed in a C-71 mental health facility under "constant suicide watch." An identical transfer form marked as exhibit 2 indicates that claimant was found no longer to be a danger to himself or to others on July 23, 2014 and then according to claimant, transferred to the general population on July 24, 2014. If claimant was under a disability due to mental incapacity when his claim accrued, then the claim filed and properly served by certified mail, return receipt requested within two years of July 24, 2014, when his mental incapacity or disability ended, was timely filed and served and there would be no need for claimant to move for permission to file a late claim under Court of Claims Act § 10 (6).
In Boland v State of New York, supra at 343, the Court of Appeals held that a patient committed to a mental institution at the time of injury was under a continuing legal disability during the period of her confinement and was entitled to serve her claim within two years of her discharge from the State Hospital pursuant to Court of Claims Act § 10 (5), rather than the ninety (90) day time limit under Court of Claims Act § 10 (3). Similarly, in Frank v State of New York, 21 Misc. 3d 387 (Ct Cl 2008), a claimant's confinement to a State psychiatric hospital was sufficient to entitle her to the tolling provision of Court of Claims Act § 10 (5), and thus, the claimant did not need to file a motion for permission to late file a claim as her claim filed more than three months after her release from the hospital was timely.
Here, claimant was taken into custody by two New York State parole officers after attempting suicide and was transferred three days later from Jamaica Hospital to the psychiatric center at Bellevue, then to the mental observation unit at the Kross Center where he was under constant suicide watch, and then released on July 24, 2014 into the general population at Rikers Island. Based on these facts, I find that claimant was under a legal disability until his release to the general population on July 24, 2014 and was entitled to the two year tolling provision of Court of Claims Act § 10 (5). Thus, the claim filed on November 12, 2015 and properly served by certified mail, return receipt requested, on November 30, 2015, within two years of the removal of claimant's disability, was timely.
Accordingly, defendant's motion (M-89006) to dismiss claim no. 127023 is denied. Defendant has forty-five days from the date of filing of this decision and order within which to serve and file its answer to the claim. Further, insofar as claimant's opposing papers can be read as a motion for permission to file a late claim, such a motion is denied as unnecessary.
April 25, 2017
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims The following were read and considered by the Court: 1. Notice of motion and supporting affirmation of Assistant Attorney General Joseph L. Paterno dated December 8, 2015, with annexed exhibit A; 2. Answer to the motion and notice of motion and unsworn statement of Ralph Paladino dated January 16, 2016 and filed January 25, 2016, with annexed exhibits 1-4; 3. Answer to the motion and notice of motion and unsworn statement of Ralph Paladino dated January 16, 2016 and filed for a second time on August 18, 2016, with annexed exhibits 1-4; and 4. Affirmation in opposition to claimant's motion and in further support of defendant's motion of Assistant Attorney General Joseph L. Paterno dated January 18, 2017.
Claimant is not a person authorized to use an affirmation in lieu of an affidavit sworn to before a Notary Public (see CPLR 2106).
Claimant filed two identical copies of his answer to motion and notice of motion and unsworn statement dated January 16, 2016: the first copy was filed on January 25, 2016 and the second copy was filed on August 18, 2016. See footnote 4.