Claim No. 110403 Motion No. M-80050 # 2011-048-004
Defendant's motion to dismiss the Claim was granted based on Claimant's failure to timely serve a properly verified Notice of Intention to File a Claim on the Attorney General. Case information
UID: 2011-048-004 Claimant(s): BABU SINGH Claimant short name: SINGH Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 110403 Motion number(s): M-80050 Cross-motion number(s): Judge: GLEN T. BRUENING Claimant's attorney: BABU SINGH, Pro Se HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York Defendant's attorney: By: Michael C. Rizzo, Esq. Assistant Attorney General Third-party defendant's attorney: Signature date: September 8, 2011 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Babu Singh, Claimant in this case appearing pro se, seeks damages for personal injuries alleged to have been sustained on November 3, 2003 as a result of the negligence of Defendant in transporting him from Eastern Correctional Facility to Shawangunk Correctional Facility, both located in Ulster County, for a scheduled physical therapy session. On that date, Claimant claims that, while he was exiting the vehicle used to transport him, he fell, exacerbating a pre-existing left knee injury. Claimant alleges that he was then told to sit on the facility's loading dock while a correction officer removed his leg shackles, whereupon he lost consciousness and fell, sustaining injuries to his head, wrists and ankles. Defendant moves pursuant to CPLR § 3211 (a) (2) and (8) for an order dismissing the Claim based on the lack of subject matter and personal jurisdiction due to Claimant's failure to timely serve a properly verified Claim or Notice of Intention to File a Claim on the Attorney General within 90 days of accrual. Claimant opposes Defendant's motion and, without having made a formal motion, requests permission to file a late Claim pursuant to Court of Claims Act § 10 (6).
Lawsuits for money damages brought against the State in the Court of Claims are allowed because the State waived its sovereign immunity conditioned upon Claimant's compliance with specific statutory requirements that are set forth in Article II of the Court of Claims Act (see Court of Claims Act §§ 8 and 9 ; Lepkowski v State of New York, 1 NY3d 201, 206 ; Gates v State of New York, 128 NY 221, 228 ). These statutory preconditions to such claims, including the filing and service requirements mandated by Court of Claims Act § 11, are jurisdictional and must be strictly construed (see Alston v State of New York, 97 NY2d 159, 163-164 ; Lichtenstein v State of New York, 93 NY2d 911, 913 ; Dreger v New York State Thruway Auth., 81 NY2d 721, 724 ; Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 ).
Court of Claims Act § 11 (a) (i) mandates that a copy of the Claim be served personally or by certified mail, return receipt requested, upon the Attorney General within the applicable time period provided in Section 10 of the Court of Claims Act. As is relevant to this action, Court of Claims Act § 10 (3) mandates that "[a] claim to recover damages for injuries to property or for personal injuries caused by the negligence or unintentional tort of an officer or employee of the state while acting as such officer or employee, shall be filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after the accrual of such claim." In addition, Court of Claims Act § 11 (b) requires that both the Notice of Intention and the Claim be "verified in the same manner as a complaint in an action in the supreme court." The Court of Appeals has clarified that all of the requirements in Section 11 (b) are "substantive conditions upon the State's waiver of sovereign immunity" (Lepkowski v State of New York, 1 NY3d 201, 207 ; see Kolnacki v State of New York, 8 NY3d 277, 280 ). When a party fails to verify or defectively verifies either the Notice of Intention or the Claim, the Defendant may treat the document as a nullity, provided Defendant "gives notice with due diligence to the attorney of the adverse party that he elects so to do" (CPLR § 3022). Court of Claims Act § 11 [c] provides that an objection to the time limitations and verification requirement are waived unless specifically raised in the answer or in a pre-answer dismissal motion. Consequently, unless the objection to the verification requirement is so waived, a Claimant's failure to serve the Attorney General with a properly verified Claim or Notice of Intention to File a Claim within 90 days of accrual divests this Court of subject matter jurisdiction (see Court of Claims Act § 11 [a] [i] and [b]; Alston v State of New York, 97 NY2d at 164; see also City of New York v State of New York, 46 AD3d 1168, 1170 [3d Dept 2007], lv denied 10 NY3d 705 ; Fulton v State of New York, 35 AD3d 977, 978 [3d Dept 2006], lv denied 8 NY3d 809 ).
In this case, on January 26, 2004, Claimant served a Notice of Intention on the Attorney General. In support of its motion, defense counsel asserts that the Notice of Intention was unverified and that, on January 26, 2004, the same day it was received, the Attorney General rejected and returned the document via correspondence advising Claimant that the unverified Notice of Intention was being treated as a nullity pursuant to CPLR § 3022 (see Affidavit of Michael C. Rizzo, Esq., ¶ 5, Exhibits B and C). Defendant also raised an objection based on the lack of verification of the Notice of Intention in its Answer (see Answer, ¶ 7). Claimant offered no evidence to show that the Notice of Intention was verified. Thus, the Court finds that the Notice of Intention served January 26, 2004 failed to meet the requirements of Court of Claims Act § 11 (b). The Court further finds that Defendant exercised due diligence in notifying Claimant that it was treating the Notice of Intention as a nullity, and properly preserved its objection to the Claimant's unverified Notice of Intention.
In the Claim filed on January 24, 2005, Claimant asserts that he served a second Notice of Intention on February 9, 2004 that was properly verified. In its answer, Defendant argues that the Notice of Intention was untimely (see Answer ¶ 7). It is undisputed that the second Notice of Intention was served 98 days after accrual of the Claim. Because neither the second Notice of Intention nor the Claim was served within 90 days of accrual of the Claim as required by Court of Claims Act §§ 10 (3) and 11 (a) (i), the Claim is untimely.
However, if a Claimant fails to timely file or serve his or her Claim, he or she may move the Court for permission to file and serve a late Claim so long as the applicable statute of limitations set forth in Article 2 of the CPLR has not expired (see Court of Claims Act §10 ). Having failed to move this Court on notice to Defendant for permission to file a late claim, the Court will not grant such relief. Nevertheless, in an action seeking damages for personal injury, such as the instant Claim, the applicable statute of limitations is three years from the date of accrual (see CPLR § 214 ). Because the incident forming the basis of the Claim took place on November 3, 2003, the statute of limitations expired on November 3, 2006. Thus, even if Claimant had made a formal motion seeking permission to file a late Claim in response to Defendant's motion, it would have been untimely, thus divesting the Court of subject matter jurisdiction (see Alston v State of New York, 97 NY2d at 163-164). Accordingly, Defendant's Motion No. M-80050 is granted and the Claim is dismissed.
Albany, New York
GLEN T. BRUENING
Judge of the Court of Claims
The following papers were read and considered by the Court:
Defendant's Notice of Motion to Dismiss, Affidavit of Michael C. Rizzo, Esq., sworn to on July 1, 2011, with attached Exhibits A- E and the Affidavit of Janet A. Barringer, sworn to on June 30, 2011;
Claimant's opposition to Defendant's Motion, dated July 14, 2011.