Francis v. State

• Decision Date: 08 October 1992
• Docket Number: No. 76816,76816
• Citation: 155 Misc.2d 1006,591 N.Y.S.2d 687
• Parties: Gordon FRANCIS, Claimant, v. The STATE of New York, Defendant.
• Court: New York Court of Claims

Page 687

591 N.Y.S.2d 687

155 Misc.2d 1006

Gordon FRANCIS, Claimant, v. The STATE of New York, Defendant.

No. 76816.

Court of Claims of New York.

Oct. 8, 1992.

Zaslav & Auerbach, New York City (H. Gary Zaslav, of counsel), and Williams & Geiger, Brooklyn (Mark E. Feinberg, of counsel), for claimant.

Robert Abrams, Atty. Gen. (J. Gardner Ryan, Asst. Atty. Gen., of counsel), for defendant.

DONALD J. CORBETT, Jr., Presiding Judge.

After originally seeking dismissal of this personal injury claim on the ground that claimant failed to timely serve a claim or a notice of intention to file a claim, defendant was advised by claimant's counsel that a notice of intention had indeed been timely served and filed. Defendant then modified its motion by alleging that the notice of intention had not been served in a manner authorized by law, thereby rendering such service a nullity and depriving this court of subject matter jurisdiction.

Claimant alleges that, as a result of the defendant's negligence, he was shot on September 30, 1987 by another inmate at Sing Sing Correctional Facility. Since the Claim was filed on April 27, 1988, more than 90 days following its accrual, its timeliness is dependent on the Notice of Intention, which was filed on November 30, 1987 and served on December 3, 1987 (see, Court of Claims Act § 10[3].

The Answer herein, filed on May 31, 1988, contained no reference to the defendant's subsequent contention that improper service of the Notice of Intention rendered the Claim jurisdictionally infirm. Court of Claims Act § 11(c), providing for the waiver of any jurisdictional objection relating to manner of service not set forth in the answer or in a pre-answer dismissal motion, did not take effect until July 18, 1990 (L.1990 ch. 625), and thus is not applicable here. The legislative enactment of § 11(c), mandating resolution of jurisdictional issues at the outset of the litigation, was undoubtedly motivated by situations such as the present one, to wit, where the dismissal motion was only made after the expiration of the time when this claimant could have sought permission to file a late claim (Court of Claims Act § 10[6]; CPLR 214).

I directed that a plenary hearing be held with respect to the factual and legal issues surrounding the service of the Notice of Intention. Claimant's process server, Frank Kerstein, testified that he has been licensed by the New York City Department of Consumer Affairs as a process server since 1985, and that he had been engaged to effect service of the Notice of Intention herein upon the defendant. Kerstein related that, on December 3, 1987, he proceeded to an office of the Attorney General at 120 Broadway in Manhattan, where the listing for the Attorney General on the directory in the building's lobby included an entry reading "Service of Process," specifying a room on the 24th floor.

Kerstein testified that he handed the Notice of Intention to the man sitting in a glass-enclosed booth in that room on the 24th floor, and asked him "Can you take these?" Kerstein testified that "he looked at it, he took it, and he stamped a work ticket that I return to the process agency. Then, I left."

Kerstein averred that he knew the person in the booth--one Milton Maliavsky--because he had served him, on prior occasions, with papers intended for the Attorney General, albeit conceding under cross-examination that he did not know Maliavsky to be an Assistant Attorney General, nor did he ask him if he was an Assistant Attorney General.

Defendant presented the testimony of Seth Corwin, who in 1987 was Deputy Bureau Chief in the office of the Attorney General at 120 Broadway with the Claims Bureau, which is responsible for defending the State of New York in the Court of Claims. He testified that the Claims Bureau was on the 25th floor while the Litigation Bureau was on the 24th floor, and since claims and notices of intention must be personally served on an Assistant Attorney General, receptionists in the Claims Bureau were instructed to get an Assistant Attorney General to receive service when someone appeared with such a document. He averred that "members of other bureaus were instructed along those lines." According to Corwin, the booth on the 24th floor was intended for service of papers concerning Article 78 and other Supreme Court proceedings upon the Litigation Bureau, and clerks who sat in the booth had been instructed that any papers involving the Court of Claims were to be referred to the 25th floor.

Under cross-examination, Corwin conceded that there was no sign or other indication on the 24th floor indicating that Court of Claims papers were to be served elsewhere. His recollection was that the lobby directory stated "Service of Papers--24th floor." Corwin did not know Maliavsky and did not know what instruction he had received from his superiors. He conceded that there had been "several problems" with respect to the instructions given to the Litigation Bureau clerks and that the instructions had to be "reinforced" every so often.

Defendant relies on Court of Claims Act § 11, which provided that a claim or notice of intention must be served personally or by certified mail, return receipt requested, upon the Attorney General, ¹ and on CPLR 307 which provides that personal service shall be made by delivery to the Attorney General or to an Assistant Attorney General. Since Maliavsky was not an Assistant Attorney General, defendant urges that the purported service of the Notice of Intention upon him was a nullity, and that the instant Claim is therefore jurisdictionally defective.

Claimant raises two arguments in opposition to the defendant's motion. Initially, claimant contends that, under the doctrine of equitable estoppel, the service of the Notice of Intention was proper. Second, claimant argues that, even if there was a defect in the manner of service, it relates to the issue of in personam jurisdiction over the defendant, not the subject matter jurisdiction of the court, and that the defendant waived its objection by failing to raise it in the Answer (see, CPLR 3211[a][8]; [e]. The enactment of § 11(c) resolved the waiver issue with respect to answers filed subsequent to July 18, 1990, and it specifically requires early identification of jurisdictional questions relating to timeliness or manner of service, assuring that the availability of § 10(6) relief will no longer disappear behind a veil of silence, as was the case herein. Thus, I am presented with an archaic and unusual set of circumstances that, by virtue of the enlightened amendment of our governing statute more than two years ago (L.1990 ch. 625), is not likely to recur.

Generally, estoppel may not be applied against a governmental entity (Daleview Nursing Home v. Axelrod, 62 N.Y.2d 30, 475 N.Y.S.2d 826, 464 N.E.2d 130). Nevertheless, case law has recognized some rare and rigidly circumscribed exceptions to the general rule. In Bender v. New York City Health and Hospitals Corp., 38 N.Y.2d 662, 668, 382 N.Y.S.2d 18, 345 N.E.2d 561, a unanimous Court of Appeals held " * * * our court has never specifically adopted the doctrine of estoppel in the notice of claim area. * * * We do so today." In that case, a notice of claim (see, General Municipal Law § 50-e) was served upon the City of New York rather than the New York City Health and Hospitals Corporation, the proper defendant. The court ruled that the conduct of the defendant in litigating the case without apprising the plaintiff of the defect could give rise to an estoppel, holding:

where a governmental subdivision acts or comports itself wrongfully or negligently, inducing reliance by a party who is entitled to rely and who changes his position to his detriment or prejudice, that subdivision should be estopped from asserting a right or defense which it otherwise could have raised. 38 N.Y.2d 662, 668, 382 N.Y.S.2d 18, 345 N.E.2d 561.

See also, Allen v. Board of Education, 168 A.D.2d 403, 563 N.Y.S.2d 422 app. dsmd. 77 N.Y.2d 939, 569 N.Y.S.2d 612, 572 N.E.2d 53; Young v. Supervisor of the Town of Lloyd, 159 A.D.2d 828, 552 N.Y.S.2d 981 app. dsmd. 76 N.Y.2d 761, 559 N.Y.S.2d 237, 558 N.E.2d 39; Matter of 1555 Boston Road Corp. v. Finance Administrator of the City of New York, 61 A.D.2d 187, 401 N.Y.S.2d 536; Eden v. Board of Trustees of the State University of New York, 49 A.D.2d 277, 284, 374 N.Y.S.2d 686; H. Sysol Construction Co. v. State of New York, 92 Misc.2d 238, 241, 399 N.Y.S.2d 1006.

In People v. Thomas, 47 N.Y.2d 37, 416 N.Y.S.2d 573, 389 N.E.2d 1094, a criminal defendant had failed to file a notice of appeal within the statutory 30 day period, and had failed to move for an extension of that period until expiration of the one-year limitation for such a motion (CPL § 460.30). Although the defendant was under the impression that his assigned counsel had filed the notice, the Court of Appeals faulted the District Attorney for, in effect, playing possum until the time in which to move for an extension had expired. The court noted that the one year limit set forth in the statute should be strictly construed since:

the time limits within which appeals must be taken are jurisdictional in nature and courts lack inherent power to modify or extend them * * * Nevertheless, because the omissions on the part of the prosecutor, though no doubt made more critical by assigned counsel's less than assiduous performance, frustrated the good faith exercise of the defendant's right to the remedy of CPL 460.30, the People should be estopped from...