Opinion
Claim Nos. 137680 135206
09-14-2022
Barbara Resnick and Michelle Dellacava, As Co-Administrators of the Estate of Michael Paul Resnick, Deceased, Claimants, v. The State of New York, Defendant. Barbara Resnick as Proposed Administrator of the Estate of Michael Resnick, Claimant, v. The State of New York, Defendant.
For Claimants: CAITLIN ROBIN & ASSOCIATES, PLLC By: Mark Laughlin, Esq. For Defendant: HON. LETITIA JAMES Attorney General for the State of New York By: J. Gardner Ryan, Assistant Attorney General
Unpublished Opinion
For Claimants: CAITLIN ROBIN & ASSOCIATES, PLLC By: Mark Laughlin, Esq.
For Defendant: HON. LETITIA JAMES Attorney General for the State of New York By: J. Gardner Ryan, Assistant Attorney General
Walter Rivera Judge of the Court of Claims
The following papers were read and considered by the Court on claimants' motion for consolidation (Motion No. M-98196) and the State's cross-motion for dismissal (Cross-Motion [*2] No. CM-98256).
Notice of Motion, Attorney's Supporting Affirmation and Exhibits, Memorandum of Law 1
Notice of Cross-Motion, Attorney's Supporting Affirmation and Exhibits 2
Attorney's Reply Affirmation in Opposition to Cross-Motion and In Further Support of Motion 3
Claimants move to consolidate Claim Nos. 135206 and 137680 pursuant to CPLR § 602 (a) and to deem Amended Claim No.137680 filed and served. The State cross-moves to dismiss Claim No. 135206 pursuant to Court of Claims Act § 10 (2) and CPLR 3211 (a) (7) on the grounds that claimant, as the proposed administrator, did not have standing to bring a cause of action on behalf of the decedent and therefore the claim fails to state a cause of action and warrants dismissal. The State also cross-moves to dismiss Claim No. 137680 pursuant to Court of Claims Act §§ 10 (2) and 11 as untimely served and filed.
The State does not oppose claimants' application that the Court deem Amended Claim No. 137680 served and filed, provided, however, that the State's filed Answer and cross-motion be deemed applicable to Amended Claim No. 137680. Accordingly, the Court hereby GRANTS that branch of claimants' motion and Amended Claim No. 137680 is deemed served and filed.
Background
On May 28, 2020, Michael Resnick, (hereinafter the decedent) died during his incarceration at Green Haven Correctional Facility. On August 14, 2020, Claim No. 135206, brought by Barbara Resnick as "Proposed Administrator of the Estate of Michael Resnick," was filed with the Court alleging injuries and wrongful death due to the negligence and recklessness of the State in failing to provide the decedent with timely and appropriate medical care, diagnosis and treatment (Claimants' Ex. B). A copy of Claim No. 135206 was served upon the attorney general's office on November 4, 2020 (Claimants' Ex. C). The State served and filed a Verified Answer asserting as affirmative defenses that, inter alia, claimant lacks standing and capacity to commence and maintain the pleaded claim and that the Court lacks jurisdiction over the claim as the claim is not brought by a personal representative of the decedent or a duly qualified and appointed representative of the decedent's estate (State's Ex.2, ¶¶ 3, 4).
On April 5, 2022, Claim No. 137680, brought by "Barbara Resnick and Michelle Dellacava, as co-administrators of the Estate of Michael Paul Resnick, deceased" was filed with the Court (Claimants' Ex. F). Claim No. 137680 asserts that the claim is filed within 90 days after the appointment of claimants as co-administrators of decedent's estate and then cites" See attached Certificate of Appointment of Administrators, dated March 16, 2022" (State's Ex. 3). A copy of the certificate, however, is not attached to the filed claim. A copy of Claim No. 137680, without the attached certificate, was served upon the attorney general's office on April 13, 2022. The Certificate of Appointment of Administrators, dated March 16, 2022, is included in claimants' motion papers and states that the Limited Letters of Administration were issued on December 22, 2021 (Claimants' Ex. E). The State's Verified Answer served and filed on May 6, 2022, raises as an affirmative defense at paragraph three that the claim is untimely under Court of Claims Act § 10 (2) and (3) as it was not served within 90 days after the appointment of claimants as co-administrators and no notice of intention to file a claim was timely served upon the attorney general's office (State's Ex. 4).
While the State's papers refer to a service date of April 12, 2022, the claim was stamped received by the attorney general's office on April 13, 2022 (State's Ex. 3). The State also notes that a certificate of merit was neither filed nor served with the claims as required by CPLR 3012-a in medical malpractice actions.
On June 1, 2022, claimants filed an Amended Claim to Claim No. 137680 to "fix a minor clerical error" in the verification of Claim No. 137680 (Claimants' Ex. H).
Analysis
The service requirements set forth in Court of Claims Act §§ 10 and 11 are jurisdictional in nature and require strict compliance as a precondition of suit against the State (see Dreger v New York State Thruway Auth., 81 N.Y.2d 721, 724 [1992]). A failure to comply with any of the service provisions is a jurisdictional defect compelling the dismissal of the claim (see Kolnacki v State of New York, 8 N.Y.3d 277, 281 [2007] ["(t)he failure to satisfy any of the (statutory) conditions is a jurisdictional defect"]; Welch v State of New York, 286 A.D.2d 496, 497-498 [2d Dept 2001]). Both service and filing of the claim must occur within the statutory time period mandated by the Court of Claims Act (see Dreger, 81 N.Y.2d at 724).
Claimants argue that the claims should be consolidated because Claim No. 135206 was timely served and filed under the tolling provisions of Governor Andrew Cuomo's Executive Orders issued in response to Covid-19 (see Executive Order Nos. 202.8, 202.14, 202.28, 202.38, 202.48, 202.55, 202.551, 202.60, 202.67, 202.72). Claimants further argue that the State did not raise timeliness or manner of service as affirmative defenses in the State's Answer to Claim No. 135206 and that therefore the State has waived such affirmative defenses pursuant to Court of Claims Act § 11 (c).
The Court finds that claimants' arguments regarding the timeliness of Claim No. 135206 are not compelling. Additionally, claimants failed to address the jurisdictional defects of Claim No. 135206, which were raised with specificity in the State's Verified Answer to Claim No. 135206 (State's Ex. 2, ¶¶ 3, 4). Specifically, the Court finds that, as argued by the State in its cross-motion to dismiss Claim No. 135206 pursuant to Court of Claims Act § 10 (2) and CPLR 3211 (a) (7), Claim No. 135206 warrants dismissal on the grounds that the named claimant, as the proposed administrator, did not have standing to bring a cause of action on behalf of the decedent and therefore the claim fails to state a cause of action upon which relief may be obtained against the State (see EPTL 5-4.1, 11-3.2 [b]). Court of Claims Act §§ 10 (2) and 10 (3) contemplate the formal appointment of an executor or an administrator before the commencement of a claim and a claim commenced prior to such an appointment must be dismissed consistent with the strict construction to the Court of Claims Act and the pre-conditions of the State's waiver of its sovereign immunity (see Lichtenstein v State of New York, 93 N.Y.2d 911, 913 [1999]; Dreger, 81 N.Y.2d at 722; Kiesow v State of New York, 161 A.D.3d 1060 [2d Dept 2018]; Thomas v State of New York, 57 A.D.3d 969, 970 [2d Dept 2008]). Accordingly, that branch of the State's cross-motion which seeks to dismiss Claim No. 135206 is GRANTED.
Additionally, the Court finds that Claim No. 137680 warrants dismissal due to its untimeliness as raised with specificity in the State's Verified Answer to Claim No. 137680 and as argued by the State in that branch of its cross-motion seeking the dismissal of Claim No. 137680 (State's Ex. 4, ¶ 3). Specifically, the Court finds that Claim No. 137680 was not timely commenced within 90 days after December 22, 2021, the date when Limited Letters of Administration were issued to the claimants appointing them as co-administrators of the decedent's estate (Claimants' Ex. E). Rather, Claim No. 137680 was filed on April 5, 2022 and served upon the attorney general's office on April 13, 2022, which was untimely and well beyond 90 days after the appointment of the co-administrators (see Dreger, 81 N.Y.2d at 724). Accordingly, that branch of the State's cross-motion which seeks to dismiss Claim No. 137680 and the Amended Claim No. 137680 is GRANTED.
To the extent that claimants' reply papers seek that "this Court exercise its discretion to accept Claim No. 137680 as timely filed nunc pro tunc," pursuant to Court of Claims Act § 10 (6), this Court is not afforded such discretion under Court of Claims Act § 10 (6) or under any other authority (see Lichtenstein, 93 N.Y.2d at 913; Thomas, 57 A.D.3d at 970). Moreover, this Court does not have jurisdiction to even consider a properly commenced application for leave to serve and file a late claim pursuant to Court of Claims Act § 10 (6) in this matter because the aforenoted statute provides that a late claim application must be brought before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the CPLR. In this matter, the statute of limitations lapsed two years after the date of death on May 28, 2020 (Court of Claims Act § 10 [2]) and therefore the Court is without jurisdiction to hear an application for late claim relief brought after the statute of limitations has lapsed (see Matter of Miller v State of New York, 283 A.D.2d 830 [3d Dept 2001]; Bergmann v State of New York, 281 A.D.2d 731, 733 [3d Dept 2001]). Accordingly, to the extent that claimants' reply papers seek late claim relief pursuant to Court of Claims Act 10 (6), the application is DENIED.
Claimants' motion for consolidation of Claim Nos. 135206 and 137680 is DENIED as moot.