Frederick v. State of N.Y.

• Decision Date: 23 January 2009
• Docket Number: No. 115636,115636
• Citation: 2009 NY Slip Op 29078,23 Misc.3d 1008,874 N.Y.S.2d 762
• Parties: JOVAN FREDERICK, Claimant, v. STATE OF NEW YORK, Defendant. (Claim No. 115636.)
• Court: New York Court of Claims

23 Misc.3d 1008

874 N.Y.S.2d 762

2009 NY Slip Op 29078

JOVAN FREDERICK, Claimant, v. STATE OF NEW YORK, Defendant. (Claim No. 115636.)

No. 115636

Court of Claims.

Decided January 23, 2009.

Andrew M. Cuomo, Attorney General, Albany (Michael T. Krenrich of counsel), for defendant.

Sandback, Birnbaum & Michelen (Oscar Michelen of counsel), for claimant.

OPINION OF THE COURT

CHRISTOPHER J. McCARTHY, J.

For the reasons set forth below, defendant's pre-answer motion to dismiss the claim based upon claimant's failure to comply with the service requirements of Court of Claims Act § 10 (3) and § 11 is granted. Claimant's cross motion for permission to serve and file a claim late pursuant to Court of Claims Act § 10 (6) is denied.

The claim, which was filed with the Clerk of the Court on August 5, 2008, alleges that, in the year 2000, claimant was convicted of a crime and sentenced to 3½ years of incarceration with no postrelease supervision (PRS). It further alleges that, in April 2003, the State Division of Parole and other state agents wrongfully placed claimant on five years' PRS. The claim further asserts that claimant was wrongfully convicted of three PRS violations: one in December 2004; the second in December 2006; and the third in January 2008. Claimant was released from custody when his writ of habeas corpus was granted on May 7, 2008. The claim alleges that the State violated claimant's rights and falsely imprisoned claimant.

Pursuant to Court of Claims Act provisions applicable to personal injury actions, 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 (to the extent claimant asserts injuries caused by negligence or unintentional torts) or within one year (to the extent he asserts intentional torts of state employees) (Court of Claims Act § 10 [3], [3-b]). In either case, claimant was required to initiate action within 90 days of the claim's accrual.

Section 11 (a) (i) of the Court of Claims Act 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. 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]).

Court of Claims Act § 11 (a) (i) provides, "[s]ervice by certified mail, return receipt requested, upon the attorney general shall not be complete until the claim . . . is received in the office of the attorney general." Claimant asserts his claim accrued on May 7, 2008 (claim ¶ 4). In his affirmation submitted in support of the State's motion, defense counsel asserts that the Attorney General's office received a claim by certified mail, return receipt requested, on August 7, 2008 (see exhibit A attached to motion), 92 days after accrual. It does not matter that the claim was postmarked on Tuesday, August 5, 2008, the 90th day after accrual (see Court of Claims Act § 11 [a] [i]).

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 (De Marco 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 filing requirements of the Court of Claims Act constitutes a fatal jurisdictional defect requiring dismissal (Buckles v State of New York, 221 NY 418 [1917]; Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]; Byrne v State of New York, 104 AD2d 782 [2d Dept 1984], lv denied 64 NY2d 607 [1985]). This defect was timely and properly raised with particularity, by this pre-answer motion, in accordance with Court of Claims Act § 11 (c).

Based upon the foregoing, defendant's motion is granted and the claim is dismissed for failure to timely serve and file the claim in accordance with Court of Claims Act § 10 (3) and (3-b).

The court now turns to claimant's motion pursuant to Court of Claims Act § 10 (6) seeking permission to serve and file a late claim.

Pursuant to Court of Claims Act § 10 (6), it is within the court's discretion to allow the filing of a late claim if the applicable statute of limitations set forth in article 2 of the CPLR has not expired. Thus, the first issue for determination upon any late claim motion is whether the application is timely. Since the proposed claim appears to assert causes of action for the intentional tort of false imprisonment (CPLR 215 [3] [a one-year statute of limitations]), and a constitutional tort for violation of claimant's rights (CPLR 214 [5] [a three-year statute of limitations]; see Brown v State of New York, 89 NY2d 172 [1996]), the motion is properly before the court.

Next, in determining whether to grant a motion to file a late claim, Court of Claims Act § 10 (6) sets forth six factors that should be considered, although other factors deemed relevant also may be taken into account (Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]). The movant need not satisfy every statutory element (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 [1982]). However, the burden rests with the movant to persuade the court to grant his or her late claim motion (see Matter of Flannery v State of New York, 91 Misc 2d 797 [Ct Cl 1977]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]).

The first factor to be considered is whether the delay in filing the claim was excusable. The court finds claimant's proffered excuse for the delay in timely filing and serving the claim—lack of knowledge of the court's filing requirements—is not a reasonable excuse (Modern Transfer Co. v State of New York, 37 AD2d 756 [4th Dept 1971]; Fowx v State of New York, 12 Misc 3d 1184[A], 2006 NY Slip Op 51399[U] [Ct Cl 2006]). However, the tender of a reasonable excuse for delay in filing a claim is not a precondition to permission to file a late claim such as to constitute a sine qua non for the requested relief (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d at 981).

The next three factors to be addressed—whether defendant had notice of the essential facts constituting the claim, whether defendant had an opportunity to investigate the circumstances underlying the claim, and whether the failure to file or serve a timely claim or to serve a notice of intention resulted in substantial prejudice to defendant—are interrelated and will be considered together. Defendant does not argue lack of notice, lack of opportunity to investigate, or that it will be substantially prejudiced by a delay in filing a claim (affirmation of Michael T. Krenrich, Esq. ¶ 13). Thus, those factors, therefore, weigh in claimant's favor.

The fifth factor to be considered is whether claimant has another remedy available. It appears that claimant does not have any alternate remedy.

The sixth, final and perhaps most important factor to be considered is whether the proposed claim has the appearance of merit, for it would be futile to permit a defective claim to be filed, subject to dismissal, even if other factors tended to favor the request (Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]; Prusack v State of New York, 117 AD2d 729, 730 [2d Dept 1986]; Rosenhack v State of New York, 112 Misc 2d 967, 968 [Ct Cl 1982]; Edward C. Flaherty Corp. v State of New York [New York State Parks & Recreation Div.], 102 Misc 2d 438, 440 [Ct Cl 1979]). It is the movant's burden to show that the claim is not patently groundless, frivolous or legally defective, and, based upon the entire record, including the proposed claim and any affidavits, that there is reasonable cause to believe that a valid cause of action exists. While this standard clearly places a heavier burden upon a party who has filed late than upon one whose claim is timely, it does not, and should not, require the movant to establish definitively the merit of the claim, or overcome all legal objections thereto, before the court will permit the movant to file a late claim (Matter of Santana v New York State Thruway Auth., 92 Misc 2d at 11-12).

In support of his assertion that his claim has the appearance of merit, Mr. Frederick's counsel asserts that the "meritorious nature of the claim is evident on its face as post-release supervision must be ordered at the time of sentencing otherwise it cannot be applied to a defendant" (affirmation of Oscar Michelen, Esq. ¶ 8). Counsel further asserts that Mr. Frederick was placed on PRS despite it not being ordered et the time of his sentencing (id.).

In Matter of Garner v New York State Dept. of Correctional Servs. (10 NY3d 358 [2008]), the Court of Appeals made clear that "PRS represents a significant punishment component that restricts an individual's liberty . . . It is not automatically included in the pronouncement of a determinate sentence,...