Opinion
# 2014-040-039 Claim No. 123461 Motion No. M-84632 Cross-Motion No. CM-85155
07-21-2014
KEITH WATERS, 06-A-2999 v. THE STATE OF NEW YORK
Keith Waters, Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Joan Matalavage, Esq., AAG
Synopsis
State's cross-motion to dismiss as claim untimely served is granted. Claimant's motion for summary judgment denied as moot.
Case information
| UID: | 2014-040-039 |
| Claimant(s): | KEITH WATERS, 06-A-2999 |
| Claimant short name: | WATERS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 123461 |
| Motion number(s): | M-84632 |
| Cross-motion number(s): | CM-85155 |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Keith Waters, Pro Se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Joan Matalavage, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | July 21, 2014 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, Claimant's motion for summary judgment is denied as moot and Defendant's cross-motion on the basis that the Court lacks jurisdiction over the Claim as a result of pro se Claimant's failure to comply with the timeliness of service requirement of Court of Claims Act § 10 is granted.
The Claim, which was filed in the office of the Clerk of the Court on November 6, 2013, alleges that, on January 18, 2013, Claimant received a Tier III Misbehavior Report charging him with violating two institutional rules. At the time he was incarcerated at Greene Correctional Facility located in Coxsackie, New York (hereinafter "Greene"). A Tier III Hearing was commenced on January 22, 2013 and Claimant objected on the grounds that the Misbehavior Report was procedurally improper. He was found guilty of one of the two charges on March 21, 2013 and, inter alia, received 90 days in the Special Housing Unit (hereinafter "SHU"). Claimant was released from SHU on or about May 31, 2013, after 70 days (Claim, ¶¶ 5[F], 7). On October 2, 2013, Supreme Court, Albany County, annulled and ordered expunged all references to the January 22, 2013 disciplinary hearing from Claimant's institutional record in an Article 78 proceeding initiated by him.
Pursuant to Court of Claims Act § 10(3), the provision applicable to personal injury actions caused by negligence or unintentional torts of State employees, 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. In that case, the Claim itself was required to be filed and served upon the Attorney General within two years after the accrual of the Claim. In either case, Claimant was required to initiate action within 90 days of the Claim's accrual.
Court of Claims Act § 11(a)(i) provides that the Claim shall be filed with the Clerk of the Court and that a copy shall be served upon the Attorney General within the time period provided in Section 10 of the Court of Claims Act, either personally or by certified mail, return receipt requested. The statute further 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. It is well established that failure to timely serve the Attorney General in strict compliance with Court of Claims Act § 11 gives rise to a jurisdictional defect (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 723 [1989]; Matter of Dreger v New York State Thruway Auth., 177 AD2d 762, 763 [3d Dept 1991], affd 81 NY2d 721 [1992]; Suarez v State of New York, 193 AD2d 1037, 1038 [3d Dept 1993]).
Pursuant to Court of Claims Act § 11(c), however, any such defect 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]).
A Notice of Intention to File a Claim was received by the Attorney General by certified mail, return receipt requested, on October 15, 2013. Defendant rejected the Notice of Intention and returned it to Mr. Waters on October 15, 2013 because it was unverified (Waters v State of New York, UID No. 2014-040-005 [Ct Cl, McCarthy, J., Feb. 3, 2014]). Mr. Waters then filed the Claim with the Clerk of the Court on November 6, 2013, which was assigned Claim No. 123461. The State received a Claim from Mr. Waters on November 7, 2013 by regular mail (id.). The State appears to have served and filed an Answer to the Claim on November 22, 2013. The State received another Claim, alleging the same facts as the Claim received November 7, 2013, from Claimant on December 5, 2013 by certified mail, return receipt requested. It was received in the Attorney General's Claims Bureau on December 6, 2013 (Ex. B attached to Affidavit in Support of Cross-Motion and in Opposition to Motion for Summary Judgment). On January 10, 2014, the State served and filed an Answer to the Claim received by the Claims Bureau on December 6, 2013 (id. Ex. C). Defendant asserts that the Court lacks jurisdiction over this matter, as the Claim is untimely in that neither a proper Notice of Intention nor a properly served Claim was served within 90 days of the accrual of the Claim, as required by Court of Claims Act §§ 10(3) and 11.
In its Answer, filed with the Clerk of the Court on January 10, 2014, Defendant asserted as its Second Defense "this Court lacks subject matter jurisdiction over the claim and personal jurisdiction over the defendant, The State of New York, as the claim is untimely in that neither the claim nor a notice of intention was served within ninety (90) days of the accrual of the claim as required by Court of Claims Act Sections 10(3) and 11."
In opposition to the State's cross-motion, Claimant does not dispute that the Claim is untimely. Rather, he argues that the State did not raise the defenses in the Answer and, thus, the defenses are waived pursuant to CPLR 3211(e). However, CPLR 3211(e) provides that "an objection that the summons and complaint, summons with notice, or notice of petition and petition was not properly served is waived if, having raised such an objection in a pleading, the objecting party does not move for judgment on that ground within sixty days after serving the pleading … ." The statute does not refer to a claim and none of the documents listed in the statute are proper pleadings to commence an action in the Court of Claims. Thus, it has been held that this provision of CPLR 3211(e) does not apply to practice in the Court of Claims (Diaz v State of New York, 174 Misc 2d 63, 65 [Ct Cl 1997]; see Knight v State of New York, 177 Misc 2d 181, 183 [Ct Cl 1998]). In addition, as stated above, the State did, in fact, assert the defense of untimeliness.
Court of Claims Act § 10 is more than a statute of limitations; it is a jurisdictional prerequisite to bringing and maintaining an action in this Court (Mallory v State of New York, 196 AD2d 925, 926 [3d Dept 1993]; DeMarco v State of New York, 43 AD2d 786 [4th Dept 1973], affd 37 NY2d 735 [1975]; Antoine v State of New York, 103 Misc 2d 664 [Ct Cl 1980]). Failure to timely comply with the statutory service and filing requirements of the Court of Claims Act constitutes a fatal jurisdictional defect requiring dismissal (Lyles v State of New York, 3 NY3d 396, 400-401 [2004]; Buckles v State of New York, 221 NY 418 [1917]; Langner v State of New York, 65 AD3d 780, 781 [3d Dept 2009]; Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]). The Court cannot waive a defect in jurisdiction that has been timely raised (see Thomas v State of New York, 144 AD2d 882 [3d Dept 1988]). The defect asserted was timely and properly raised with particularity, in the State's Answer as the second defense, in accordance with Court of Claims Act § 11(c) (Czynski v State of New York, 53 AD3d 881, 882 [3d Dept 2008], lv denied 11 NY3d 715 [2009]; Villa v State of New York, 228 AD2d 930, 931 [3d Dept 1996], lv denied 88 NY2d 815 [1996]).
Based upon the foregoing, Defendant's cross-motion is granted, and the Claim is dismissed for failure to timely serve and file it in accordance with Court of Claims Act § 10(3). As the Claim has been dismissed, Claimant's motion for summary judgment is denied as moot.
July 21, 2014
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court on Claimant's motion for summary judgment and Defendant's cross-motion to dismiss:
Papers Numbered
Notice of Motion, Affidavit in Support
& Exhibits attached 1
Notice of Cross-Motion, Affidavit in Support
of Cross-Motion & in Opposition to Motion
for Summary Judgment & Exhibits attached 2
Claimant's Reply Affidavit 3
Filed Papers: Claim, Answers