Schwartzberg v. State

• Decision Date: 18 May 1983
• Docket Number: No. 67330,67330
• Parties: Albert SCHWARTZBERG, Irving Lefkovitz and Albert Schwartzberg and Irving Lefkovitz d/b/a Dry Harbor Nursing Home, Claimants, v. The STATE of New York, Defendant. (Claim)
• Court: New York Court of Claims

Page 836

469 N.Y.S.2d 836

121 Misc.2d 1095

Albert SCHWARTZBERG, Irving Lefkovitz and Albert Schwartzberg and Irving Lefkovitz d/b/a Dry Harbor Nursing Home, Claimants, v. The STATE of New York, Defendant.

(Claim No. 67330.)

Court of Claims of New York.

May 18, 1983.

Marvin L. Tenzer, P.C., New York City (Scott B. Lunin, New York City, of counsel), for claimants.

Robert Abrams, Atty. Gen., Albany (Carl Rosenbloom, Asst. Atty. Gen., Albany, of counsel), for defendant.

MEMORANDUM-DECISION and ORDER

HAROLD E. KOREMAN, Presiding Judge.

By this motion defendant requests dismissal of the amended claim herein on the ground that the same was not timely filed.

This action arises out of allegedly slanderous and libelous statements made about claimants by employees of the New York State Department of Health during the review of an application for transfer of ownership of a residential health care facility operated by claimants. The purported defamatory material includes a report and published letter which indicated that claimant Albert Schwartzberg was a convicted felon; verbal statements to the intended purchasers of the facility to the effect that claimants wrongfully withdrew $300,000 from the business just prior to the execution of the purchase agreement; and subsequent oral communications to the prospective purchasers indicating that under claimants' management the facility collected approximately 1.2 million dollars in Medicaid over-reimbursements which would have to be repaid.

It is alleged that these defamatory remarks were made on November 30, 1981, December 3, 1981 and December 18, 1981 (Amended Claim, "First", "Second" and "Third" causes of action, respectively). A notice of intention was filed and served on March 1, 1982, naming the State of New York and numerous other departments and individuals as defendants. Although the first cause of action accrued on November 30, 1981, ninety-one days prior to the filing of the notice of intention, since the ninetieth day fell on a Sunday the filing on the following business day was timely even as to said earliest cause of action (Court of Claims Act, § 10, subd. 3; General Construction Law, § 25-a).

Thereafter, on November 30, 1982, prior to the expiration of the one year Statute of Limitations (see Court of Claims Act, § 12, subd. 2; CPLR 215, subd. 3; Trayer v. State of New York, 90 A.D.2d 263, 458 N.Y.S.2d 262), claimants filed a claim with this court and served a copy thereof on the Attorney General. However, the defendant named in the caption was not the State of New York, but rather four individual State employees. On December 6, 1982, claimants filed an amended claim naming the State of New York as the sole defendant and on the following day served the Attorney General with a copy.

The defendant argues that the failure to include the State of New York in the caption of the original claim rendered said pleading jurisdictionally defective and not subject to amendment so as to permit application of the relation back doctrine (see CPLR 203, subd. [e]; Goldberg v. Camp Mikan-Recro, 42 N.Y.2d 1029, 398 N.Y.S.2d 1008, 369 N.E.2d 8; see, also, Jones v. State of New York, 69 A.D.2d 936, 415 N.Y.S.2d 294, affd. 51 N.Y.2d 943, 435 N.Y.S.2d 715, 416 N.E.2d 1050). The State contends, moreover, that when the amended claim was filed the Statute of Limitations had already run on the first and second causes of action, rendering said actions untimely. Claimants, on the other hand, assert that the error in the caption was a mere technical defect which should be disregarded. They submit, furthermore, that the defect has already been corrected by the amendment, filed as of right, (Rules of the Court of Claims, Rule 12), which relates back to the date of the original filing, (CPLR 203, subd. [e] ), and that all of the actions contained therein are, therefore, timely.

In assessing the nature of the defect we would first note that there is nothing in the Court of Claims Act or Rules which pronounces that naming the State in the caption is a jurisdictional requirement (see, generally, Court of Claims Act, § 11; Rules of the Court of Claims, Rule 4; see, also, CPLR article 30.) Accordingly, we must look to decisional law to determine the effect of the omission. In this regard, claimants urge the case of Tomlinson v. State of New York, 15 A.D.2d 692, 223 N.Y.S.2d 299, to be controlling. Therein, a claim against the Thruway Authority erroneously named the State of New York rather than the autonomous public corporation as the party defendant. However, since the claim had been properly served on the Thruway Authority, as well as on the Attorney General, the Court held that the Authority had received adequate notice, that there was substantial compliance with the Court of Claims Act, and that the defect in the caption was a "mere nominal irregularity" which could be disregarded ( Tomlinson v. State of New York, supra, p. 693, 223 N.Y.S.2d 299; cf., King v. Power Authority of the State of New York, 60 A.D.2d 925, 926, 400 N.Y.S.2d 931). Defendant, however, argues Tomlinson to be inapposite, pointing out that therein the State of New York, "the Thruway's sovereign superior", (see Tomlinson v. State of New York, supra ), 15 A.D.2d p. 693, 223 N.Y.S.2d 299) was named and jurisdiction thereby conferred while, in the instant situation, the named employees were not the State's superiors and, therefore, the nexus is not the same.

Leaving aside the distinction thus presented, the issue remains whether the failure to name the State in the caption is a jurisdictional defect. Generally speaking, it is the fact of proper service which confers jurisdiction, (see Scruggs v. International Investments, 74 Misc.2d 250, 252, 342 N.Y.S.2d 270; see, also, Lehman v. Mariano, 285 App.Div. 824, 136 N.Y.S.2d 657, mot. for lv. for rearg. den. 285 App.Div. 903, 139 N.Y.S.2d 280; Application of McLean, 116 N.Y.S.2d 775, 116 N.Y.S.2d 775, affd. 280 App.Div. 921, 116 N.Y.S.2d 127). If service is proper the failure to name the intended defendant is disregarded. (See Leardon v. Dart, 175 Misc. 318, 23 N.Y.S.2d 542; see, also, Stuyvesant v. Weil, 167 N.Y. 421, 60 N.E. 738; Gordon v. Gordon, 17 Misc.2d 734, 187 N.Y.S.2d 442; but see, Rockefeller v. Hein, 176 Misc. 659, 28 N.Y.S.2d 266). Pursuing this issue, we find the decision in Matter of Great Eastern Mall v. Condon, 36 N.Y.2d 544, 369 N.Y.S.2d 672, 330 N.E.2d 628 to be most closely on point with the instant circumstances.

Great Eastern involved a petition to review real property assessments wherein there exists a statutory requirement that the proceeding be brought against the assessors, either by naming them individually, or by using the "official name of the assessing unit" (RPTL, § 704, subd. 2). Neither the title of the assessing unit, (therein the Town of Victor), nor the names of the three individual assessors appeared in the caption. The respondents contended that the failure to comply with the pleading requirements rendered the petition jurisdictionally defective. The Court of Appeals, while recognizing that the caption failed to name either of the parties required by statute, viewed this omission as a mere technical defect and rejected the respondents' argument. Moreover, referring to the legal concepts that mere defects in pleadings should not defeat otherwise meritorious claims and that substance should be preferred over form, the Court chose to adopt a "two-pronged test more consonant with modern rational thinking toward pleading and procedure" (Great Eastern Mall v. Condon, supra, p. 548, 369 N.Y.S.2d 672, 330 N.E.2d 628). The test thus advanced was: "First, did the entity which is the actual respondent, if not the formally named respondent, receive adequate notice of the commencement of the proceeding? Second, would any substantial right of this entity be prejudiced by disregarding the defect or irregularity?"

In accordance with the rationale of the Great Eastern decision, we first find that the error in the caption herein was not a jurisdictional defect. Moreover, applying the test there advanced, we must conclude that the claim provided the State with adequate notice and that the defect did not cause any substantial prejudice. The notice of intention, which was timely filed and properly served on the Attorney General, set forth the State of New York as a party defendant, and the original claim, while carrying a defective caption, was served on the Attorney General and made reference to the notice of intention. The claim also stated that the named defendants were all "officers or employees of the State of New York" (Claim, par 3). It is not unreasonable to conclude that the service of said claim gave adequate notice to the State. Secondly, we do not perceive any prejudice which might have been occasioned by the misnomer, and defendant, the party with the burden of establishing prejudice, has not advanced proof of such. (See Foley v. D'Agostino, 21 A.D.2d 60, 65, 248 N.Y.S.2d 121; see, also, Blinder v. State of New York, Court of Claims, Claim No. 61880, Motion No. M-20781, filed July 11, 1978, ROSSETTI, J., p. 2.) In view of the foregoing, the defect in the caption will be disregarded (Great Eastern Mall v. Condon, supra; Staheli v. Aetna Ins., 52 A.D.2d 754, 382 N.Y.S.2d 209; see, also, CPLR 2001,...