Opinion
# 2013-038-553 Claim No. 121686 Motion No. M-83244 Motion No. M-83586
09-09-2013
JOHN H. WHITE v. STATE OF NEW YORK
Synopsis
Defendant's motion to dismiss for lack of subject matter jurisdiction granted. Claim timely served, but by ordinary first class mail. Claim remailed by CMRRR, but beyond 90 days.
Case information
UID: 2013-038-553 Claimant(s): JOHN H. WHITE Claimant short name: WHITE Footnote (claimant name) : Defendant(s): STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 121686 Motion number(s): M-83244, M-83586 Cross-motion number(s): Judge: W. BROOKS DeBOW Claimant's attorney: JOHN H. WHITE, Pro se ERIC T. SCHNEIDERMAN, Attorney General Defendant's attorney: of the State of New York By: Michael T. Krenrich, Assistant Attorney General Third-party defendant's attorney: Signature date: September 9, 2013 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
This claim has been filed by claimant pro se, an individual who is incarcerated in a State correctional facility. The claim alleges that a correction officer encouraged other inmates to assault claimant, that claimant reported an imminent danger of assault, that defendant failed to protect claimant from assault, and that he was assaulted by his cellmate on June 11, 2012. Claimant moves to compel responses to interrogatories and for sanctions. Defendant moves to dismiss the claim on jurisdictional grounds. For the reasons that follow, defendant's motion to dismiss the claim will be granted, and claimant's motion will therefore be denied as moot.
Turning first to defendant's motion to dismiss the claim, Court of Claims Act § 11 (a) requires, inter alia, that a copy of the claim "shall be served personally or by certified mail, return receipt requested [CMRRR] upon the attorney general . . ." It is well established that failure to serve the claim in accordance with section 11 is a jurisdictional defect that requires dismissal of the claim (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 723 [1989]; Spaight v State of New York, 91 AD3d 995 [3d Dept 2012]; Rodriguez v State of New York, 307 AD2d 657 [3d Dept 2003]). Defendant raised with particularity the defense that the court lacked jurisdiction over the claim because it was delivered by ordinary mail and not CMRRR (see Krenrich Affirmation, Exhibit B [Fourth Affirmative Defense]; see also Court of Claims Act § 11 [c]). A copy of the envelope in which the claim was mailed to the Attorney General is appended to defendant's motion (id., Exhibit A), with what appears to be the mark of first class postage, lacking any indicia that it was mailed by CMRRR as required by Court of Claims Act § 11 (a).
In opposition to defendant's motion, claimant asserts that facility personnel were instructed to mail the claim to the Attorney General by CMRRR, but that they failed to do so. In support of this assertion, claimant refers to his "verified reply" to the answer that was filed on October 15, 2012. Attached thereto is a copy of a memorandum from claimant dated August 27, 2012 in which he requests that his mail to the Attorney General be sent by CMRRR, and that his account be encumbered accordingly. Claimant thus implies that his claim should not suffer for the omission or error of facility staff. However, even if prison officials were at fault for mailing the claim by ordinary first claim mail rather than CMRRR, "[a] lack of subject matter jurisdiction is a defect that cannot be overlooked or remedied by either waiver or estoppel" (Rodriquez v State of New York, 307 AD2d 657, 657 [3d Dept 2003]; see Barnes v State of New York, UID No. 2013-038-537 [Ct Cl, DeBow, J., June 28, 2013]). Thus, the contention that claimant requested that his claim be sent by CMRRR is insufficient to defeat defendant's motion to dismiss the claim.
Claimant further contends that after his receipt of defendant's verified answer to the claim, he "remailed" the claim via CMRRR, and defendant has acknowledged receipt of that claim on October 17, 2012 (see Krenrich Affirmation in Reply, ¶ 6, Exhibit C). However, a claim alleging negligence or an intentional tort must be served upon that Attorney General within 90 days of its accrual (see Court of Claims Act §§ 10 [3]; [3-b]). Thus, service of the claim upon the Attorney General by CMRRR on October 17, 2012 was not timely because is occurred more than 90 days after accrual of the claim on June 11, 2012 (i.e. later than Monday, September 10, 2012). Inasmuch as failure to timely serve the claim is a jurisdictional defect requiring dismissal of the claim (see Finnerty; Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]; Suarez v State of New York, 193 AD2d 1037 [3d Dept 1993]), the untimely CMRRR "remailing" of the claim did not save or restore the Court's jurisdiction over the claim that was improperly served by ordinary first class mail.
The Court notes that although claimant's attempt to remail the claim by CMRRR was untimely, there is nothing to "preclude claimant from . . . seeking permission to file and serve a late notice of claim" pursuant to Court of Claims Act § 10 (6) (Rodriguez at 657; see Barnes).
In light of the lack of jurisdiction over the claim, defendant's motion to dismiss the claim must be granted, and claimant's motion for relief in discovery need not be addressed. Accordingly, it is
ORDERED, that defendant's motion number M-83586 is GRANTED and claim number 121686 is DISMISSED, and it is further
ORDERED, that claimant's motion number M-83244 is DENIED.
September 9, 2013
Albany, New York
W. BROOKS DeBOW
Judge of the Court of Claims
Papers considered:
(1) Claim number 121686, filed August 30, 2012;
(2) Verified Answer, filed October 5, 2012;
(3) Verified Reply, filed October 15, 2012;
(4) Notice of Motion (M-83244) to Compel Disclosure and Notice of Motion for Sanctions, dated April 1, 2013;
(5) Claimant's Affidavit in Support and Memorandum of Law, sworn to April 1, 2013;
(6) Affirmation of Michael T. Krenrich, AAG in Opposition to Claimant's Motion to Compel Discovery Responses and for Sanctions, dated May 13, 2013, with Exhibits A-B;
(7) Verified Reply, sworn to May 15, 2013;
(8) Notice of Motion (M-83586), dated June 12, 2013;
(9) Affirmation of Michael T. Krenrich, AAG in Support of Motion to Dismiss, dated June 12, 2012 [sic], with Exhibits A-B;
(10) Verified Reply, sworn to June 17, 2013, with Exhibits;
(11) Affirmation of Michael T. Krenrich, AAG in Reply, dated July 22, 2013, with Exhibits A-D.