Philip v. State

Decision Date08 April 2022
Docket NumberClaim No. 137269
Citation75 Misc.3d 1205 (A),166 N.Y.S.3d 838 (Table)
Parties John PHILIP, As Administrator of the Estate of Joey Philip, Deceased, Claimant, v. The STATE of New York, Defendant.
CourtNew York Court of Claims

75 Misc.3d 1205 (A)
166 N.Y.S.3d 838 (Table)

John PHILIP, As Administrator of the Estate of Joey Philip, Deceased, Claimant,
v.
The STATE of New York, Defendant.

Claim No. 137269

Court of Claims of New York.

Decided on April 8, 2022


For Claimant: THE LAW OFFICE OF BRUCE W. SLANE, P.C., By: Jeremy D. Barberi, Esq.

For Defendant: LETITIA JAMES, Attorney General of the State of New York, By: Dian Kerr McCullough, Assistant Attorney General

Walter Rivera, J.

The following papers numbered 1 through 3 were read and considered by the Court on defendant's motion to dismiss the claim pursuant to CPLR 3211 (a) (2) and (a) (7) :

Notice of Motion, State's Attorney's Supporting Affirmation, and Exhibits 1

Claimant's Attorney's Affirmation in Opposition, and Exhibits 2

State's Attorney's Reply Affirmation 3

Decision

The claim for wrongful death alleges that on April 25, 2019, due to defendant's negligence, Joey Philip was injured when he fell down a defective staircase at the residential care facility where he was residing that was operated by The New York Foundling (the Foundling), located at 101 Hammond Road, Thiells, New York. He passed away as a result of his injuries on January 15, 2020. The claim is brought by John Philip, brother of the deceased, as Administrator of the Estate. Defendant moves to dismiss the claim under CPLR 3211 (a) (2) and (7), and Court of Claims Act §§ 11 (b) and 10 (3).1 Claimant opposes the motion.

The motion is supported by an attorney's affirmation, affidavits, the claim, Letters of Administration and other documents. The opposition is supported by an attorney's affirmation, medical records, an affidavit and other documents.

The Court will first address defendant's argument that the claim should be dismissed under CPLR 3211 (a) (2) for lack of subject matter jurisdiction because it was not timely filed and served under Court of Claims Act § 10 (2). The statute requires that a claim by an executor or administrator of a decedent,

"for damages for a wrongful act, neglect or default, on the part of the state by which the decedent's death was caused, shall be filed and served within ninety days after the appointment of such executor or administrator, 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 death of the decedent."

A claim against the State is allowed only by the State's waiver of sovereign immunity and in derogation of the common law (see Lichtenstein v State of New York , 93 NY2d 911, 913 [1999] ; Dreger v New York State Thruway Auth. , 81 NY2d 721, 724 [1992] ). Consequently, the statutory requirements conditioning a claim are strictly construed and applied (see Lichtenstein , 93 NY2d at 913 ; Dreger , 81 NY2d at 724 ). Where claimant has failed to meet the statutory prerequisites, the claim must be dismissed for lack of jurisdiction (see Kolnacki v State of New York , 8 NY3d 277, 281 [2007] ).

Ninety days after the date Letters of Administration were issued on February 27, 2020 (Ex. 10) would have been May 27, 2020. After applying the tolling period of 228 days resulting from then Governor Andrew Cuomo's pandemic related Executive Orders extending periods of limitation, the filing and service date for the claim or a notice of intention was extended to January 11, 2021. In the case at bar, the notice of intention was received by the Attorney General's Office on May 28, 2020. The claim was filed on December 7, 2021, and it was served on December 13, 2021.

Defendant argues that the claim is untimely because the notice of intention was not received by the Attorney General's Office within ninety days after appointment of the administrator, thus the two-year extension of time to file and serve the claim was not triggered. Defendant has submitted an affidavit of Jacqueline M. Riley, an Administrative Assistant with the Attorney General's Office. Ms. Riley attests that she reviewed the records of the Attorney General's Office and did not locate a notice of intention served by claimant.

In opposition, claimant submitted an affidavit of service signed by Giorgio Gazzola and a separate affidavit of Mr. Gazzola (Exs. 12, 14). Mr. Gazzola attests that he attempted to personally serve a copy of claimant's notice of intention at the Attorney General's Office in White Plains on May 27, 2020, but a notice posted on the door stated that the office was not accepting "walk-in visitors at this time," and that service of legal papers could be arranged by calling the posted number (Ex. 14). Mr. Gazzola called the number and was advised to serve the documents via mail. He then sent the document via Express Mail. The USPS tracking slip (Ex. 16) shows the document was received at the Attorney General's Office on May 28, 2020.

Defendant's assertion that the notice of intention was not received has been sufficiently rebutted. The Court finds that the notice of intention was timely served on May 28, 2020, which was prior to the expiration of the tolling period referred to above. Therefore, the claim is timely because it was filed and served less than two years after the decedent passed away on January 15, 2020 (see Court of Claims Act § 10 [2] ).2

Defendant also argues that the claim should be dismissed under CPLR (a) (7) because it fails to state a cause of action against the State. "When a party moves to dismiss a complaint pursuant to CPLR 3211 (a) (7), the standard is whether the pleading states a cause of action" ( Sokol v Leader , 74 AD3d 1180, 1180-1181 [2d Dept 2010] ). "In considering such a motion, the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ( Polite v Marquis Marriot Hotel , 195 AD3d 965, 967 [2d Dept 2021] ). " ‘Conclusory allegations or bare legal assertions with no factual specificity are not sufficient, and will not survive a motion to dismiss’ " (id. , quoting Matter of Kenneth Cole Prods., Inc., Shareholder Litig. , 27 NY3d 268, 278 [2016] ).

The claim (Ex. A)...

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