Sandoval v. State

• Decision Date: 17 July 1990
• Docket Number: No. 79433,79433
• Parties: Armando SANDOVAL, Claimant, v. The STATE of New York.
• Court: New York Court of Claims

Page 115

559 N.Y.S.2d 115

147 Misc.2d 1072

Armando SANDOVAL, Claimant, v. The STATE of New York.

Claim No. 79433.

Court of Claims of New York.

July 17, 1990.

Armando Sandoval, pro se.

Robert Abrams, Atty. Gen. (Frederick H. McGown, III, of counsel), for defendant.

GERALD M. WEISBERG, Judge.

There is no question but that the timeliness of the filing of a claim goes to the subject matter jurisdiction of this Court. (Reed v. State of New York, 147 A.D.2d 767, 537 N.Y.S.2d 350.) Alternatively, the weight of authority is that the method of service of a claim goes only to the issue of acquiring personal jurisdiction over the defendant and may therefore be waived. (Reed v. State of New York, 147 A.D.2d 767, 537 N.Y.S.2d 350, supra; Thomas v. State of New York, 144 A.D.2d 882, 534 N.Y.S.2d 815; Colon v. State of New York, --- Misc.2d ----, 553 N.Y.S.2d 979; cf. Finnerty v. New York State Thruway Auth., 75 N.Y.2d 721, 551 N.Y.S.2d 188, 550 N.E.2d 441.) The issue before us now, which is apparently one of first impression, is what is the effect of improper service of a timely notice of intention to file a claim where the defendant fails to raise the defect in its answer or motion.

This is a medical malpractice action which allegedly arose on July 8, 1988. According to the State's papers, uncontroverted by the claimant, the notice of intention was served by ordinary mail and received on September 12, 1988. The service was therefore timely but by an unauthorized method. (See, Court of Claims Act §§ 10, 11.) Thereafter, it is again alleged without contradiction that the claim was served by regular mail and received on September 29, 1989. The answer, other than a general denial, contained only the statute of limitations as a defense.

As an initial matter, we note that the time periods specified in Court of Claims Act §§ 10 and 11 are not statutes of limitation but jurisdictional conditions precedent to bringing suit in this Court. Antoine v. State of New York, 103 Misc.2d 664, 426 N.Y.S.2d 917; Siegel, N.Y.S.Law Digest, May, 1990.) Two somewhat contradictory corollaries follow from this proposition: that pleading the statute of limitations fails to raise defects under sections 10 and 11; but with respect to timeliness, inasmuch as subject matter jurisdiction has been implicated, the failure to plead does not constitute a waiver. (Finnerty v. New York State Thruway Auth., 75 N.Y.2d 721, 551 N.Y.S.2d 188, 550 N.E.2d 441, supra.)

Here, the claim was served more than 90 days after accrual and is therefore late, a non-waivable jurisdictional defect, unless the prior notice of intention was effective to extend claimant's time. Thus, the issue is: does the State's failure to raise the improper method of service of claimant's timely notice of intention waive the defect thereby validating it and extending the time to file and serve the claim? In other words, is a defect in the manner of service of a notice of intention waivable?

In Baggett v. State of New York, 124 A.D.2d 969, 508 N.Y.S.2d 823, a notice of intention was served by ordinary mail and the defect was preserved. (See, Reed v. State of New York, 147 A.D.2d 767, 537 N.Y.S.2d 350, supra.) In analyzing the consequences, the Fourth Department stated: "Hence, service of a copy of the notice of intention by ordinary mail was insufficient to acquire personal jurisdiction over the State * * * " (Baggett v. State of New York, 124 A.D.2d 969, 970, 508 N.Y.S.2d 823, supra.) Subsequent cases have broadly construed this to mean that defects in...