Vazquez v City Univ. of N.Y.
Annotate this CaseDecided on December 2, 2022
Court of Claims
James Vazquez, Claimant,
against
City University of New York, Defendant.
Claim No. 137657
For Claimant:
Law Office of David Wood
By: Robert N. Halpern, Esq.
For Defendant:
Letitia James, New York State Attorney General
By: Ellen S. Mendelson Esq., Assistant Attorney General David A. Weinstein, J.
Claimant James Vazquez filed a claim with this Court on March 31, 2022 asserting that defendant City University of New York ("CUNY") breached a contract with him when, upon claimant's retirement from CUNY's City College of Technology on March 10, 2022, CUNY allegedly failed to properly pay him for accrued sick time and annual leave (Claim ¶¶ 1, 21). Under the Court of Claims Act, claimant was afforded six months from the date of accrual of the alleged breach to file and serve the Office of the Attorney General ("OAG") with a copy of the claim (Court of Claims Act § 10[4]). Pursuant to section 11 of the Court of Claims Act, service on the OAG must be made personally on that Office, or by certified mail, return receipt requested (Court of Claims Act § 11[a][i]).
Before me now is defendant's motion to dismiss, in which it avers that Vazquez failed to properly serve the OAG, thus divesting this Court of jurisdiction to hear the claim (Affirmation of Ellen S. Mendelson, Esq., dated September 6, 2022 ["Mendelson Aff"] ¶¶ 2-4). The facts underlying the motion, which are not in dispute, are as follows: Claimant served a copy of his claim on the OAG by regular mail on April 7, 2022, which was not in compliance with the strict service requirements of Court of Claims Act § 11(a) (id. ¶ 4). On May 17, 2022, CUNY answered the claim and asserted several affirmative defenses, including that the "Court lacks jurisdiction over the claim due to claimant's failure to serve the claim upon the [OAG], in accordance with the Court of Claims Act Sections 10 and 11" (id. ¶ 3, Ex B [Answer] ¶ 16). Then, on August 12, 2022, before the expiration of the six-month limitations period set forth in [*2]Court of Claims Act § 10(4), Vazquez again served his claim — this time by the permissible method of personal service on the OAG (Attorney Affirmation in Opposition to Motion to Dismiss of Robert Halpern, dated September 8, 2022 ["Halpern Aff"] ¶¶ 5-6).
Claimant maintains that this second service, made in accordance with the Court of Claims Act, cured the initially defective service in a timely manner, and therefore moots defendant's argument. In response, defendant takes the position that claimant's re-service was tantamount to an "amendment" to the claim, which cannot cure a jurisdictional defect (Reply Affirmation of Ellen S. Mendelson, Esq., dated October 4, 2022 ["Reply Aff"] ¶¶ 3-4). Defendant also maintains that re-service cannot occur once CUNY served its answer, and issue was joined (id. ¶¶ 5-6, citing Gressler v State, UID 2013-040-029 [Ct Cl, May 6, 2013, McCarthy, J.][FN1] ).
Discussion
There is no dispute between the parties that Vazquez's claim accrued on March 10, 2022, and therefore the six-month period for service ran through September 10, 2022. There is also no dispute that on August 12, 2022, claimant caused his claim to be personally served on the OAG in compliance with the plain language of section 11 of the Court of Claims Act. The only question before me, then, is whether defendant's interposition of an answer in response to the initial service rendered the second effort a nullity.
The relevant statute provides that a copy of the claim "shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times herein-before provided for filing with the clerk of the court" (Court of Claims Act § 11[a][i]). That was done in this case. There is nothing in this language, or any other provision of the Court of Claims Act pointed to by the defendant, which says that once improper service is made, there is no way for the claimant to repair the defect. To the contrary, the statute does not set any further restrictions on when service may be effectuated provided it is done properly and within the statutory time frame (cf. Tooks v State of New York, 40 AD3d 1347, 1349 [3d Dept 2007] [the Court of Claims Act "does not prescribe the order of filing and service, merely requiring both to occur within the requisite time period"]).
For that reason, the caselaw is clear that, as a general matter, if service of the claim is first made on the OAG by regular mail or some other unlawful method, that claim, "may be reserved if the applicable statutory period within which to serve the claim has not yet elapsed" (Lawrence v The State of New York Dept. Of Community Supervision, UID 2018-038-505 [Ct Cl, DeBow, J., Jan. 10, 2018]; see also Sanders v State of New York, UID No. 2019-045-024 [Ct Cl, Lopez-Summa, J., Sept. 5, 2019] [denying motion to dismiss claim served a second time after initial improper service, as claimant "simply re-served his original claim upon defendant by an authorized method of service," and thereby "timely satisfied the service requirements of Court of Claims Act § 11 (a)"]; Ward v State of New York, UID No. 2010-038-107 [Ct Cl, DeBow, J., Sept. 20, 2019] [while claimant's initial service was jurisdictionally defective, "he has demonstrated that he subsequently effected service in a proper manner," and thus motion to dismiss for failure to comply with the service requirements of Court of Claims Act § 11[a] was denied]; SST Foundation v New York State Dept. of Taxation and Suisse American Securities, [*3]Inc., UID 2009-038-5 34 [Ct Cl, April 3, 2009, DeBow, J.] [where timely and proper re-service occurred and raised in opposition to motion to dismiss for improper service, defendant did not contest proper service in its reply, and motion to dismiss on this ground was denied]; Hill v The State of New York, UID No. 2003-016-081 [Ct Cl, Marin J., Oct. 9, 2003] [timely re-service by certified-mail, return receipt requested complied with Court of Claims Act § 10]).
The only fact that defendant offers which would distinguish this case from those cited above is that Vazquez's re-service occurred after defendant filed and served its answer.[FN2] To support its contention that this distinction makes a difference, CUNY relies on Gressler, supra. In that case, claimant in a prison missing property case that accrued on August 24, 2012 improperly served the claim on the OAG on November 15, 2012 by regular mail. After the answer was filed on December 17, 2012, and while the post-answer motion to dismiss for improper service was pending, Gressler arranged for re-service of the same claim on January 25, 2013 by personal delivery on the OAG (Gressler, supra).
The Court found that the defect in service could not be cured post-answer — although it noted that the claim was subject to dismissal in any case, since the re-service was not made within the 120 days of the accrual date as required by Court of Claims Act § 10(9) (id.). In this regard Gressler is unlike the present claim, where Vazquez's re-service was made within the time set by the Court of Claims Act.
To the extent the statement in Gressler that a claim cannot be re-served post-Answer may be read as more than dicta, I respectfully differ as to this conclusion. I note initially that defendant does not spell out why the filing of an answer matters for purposes of service, but the rationale would appear to be this: the defect of improper service does not create a jurisdictional bar to suit unless it is raised in an answer or pre-answer motion to dismiss (see Court of Claims Act § 11[c]). And once the issue is raised in a pre-answer motion or answer, it becomes fixed and jurisdictional, and such defect cannot be cured by amendment (see Correa v State, 208 AD3d 847, 849 [2d Dept 2022]).
The central problem with this argument is that no amended claim was served in this case. Rather, claimant simply served a copy of the exact same claim as was initially filed. This did not in any way alter the wording of the pleading, nor did it trigger the need for defendant to serve another answer — as there was nothing new to respond to, other than perhaps acknowledging that the affirmative defense of improper service was now moot. As a result, the claim was not amended, and the principal relied upon by CUNY does not apply here (see Lawrence, supra; see also Grand White Realty Corp. v Berman and Warren, 110 AD2d 582, 582 [1st Dept 1985] [re-serving complaint that was a "mirror image" of the initial complaint should not be treated as an "amended" pleading, as it did not supercede the initial pleading]). All that occurred is that the claim was served properly within the appropriate time frame.
Finally, there is simply no good reason of policy or practice that would warrant reading the rule proffered by defendant — i.e., no re-service once issue has been joined — into the statute. The State does not set forth any harm that would arise from this practice, nor does it even deny that claimant fully and timely complied with the service requirements as they are specifically set forth in the Court of Claims Act. It is undoubtedly true that the jurisdictional requirements of that Act can be highly technical, and must be "strictly construed" (see Finnerty v New York State Thruway Authority, 75 NY2d 721, 722 [1989]). But that is not a good reason for the Court to create new technical rules that are not contained in the law, and that serve no practical purpose.
In light of the foregoing, Vazquez's personal service on the OAG prior to the expiration of the time afforded for service under Court of Claims Act § 10(4) complied with the plain language of the statute (see Lawrence, supra; SST Foundation, supra; Hill, supra).
Accordingly, it is hereby
ORDERED that defendant's motion no. M-98527 is denied.
Albany, New YorkDecember 2, 2022
DAVID A. WEINSTEIN
Judge of the Court of Claims
Papers Considered1. Claim, filed March 31, 2022 and Verified Answer, filed on May 17, 2022.2. Notice of Motion and Affirmation of Ellen S. Mendelson, Esq., dated September 6, 2022, with Exhibits annexed thereto.3. Attorney Affirmation in Opposition to Motion to Dismiss of Robert Halpern, Esq., dated September 8, 2022, with Exhibits annexed thereto.4. Reply Affirmation of Ellen S. Mendelson, Esq., dated October 4, 2022.5. Attorney Affirmation in Sur-Reply to Motion to Dismiss, dated October 7, 2022. Footnotes
Footnote 1: Unpublished Court of Claims decisions cited herein can be found on the Court's web page in its searchable database (see https://iapps.courts.state.ny.us/search/begin?1).
Footnote 2: It is not clear that this is a meaningful difference from the cases cited above, accepting the premises of defendant's argument. Given the deadline for service of an answer and the date on which the claim were re-served, it would appear that at least in Sanders and Ward, supra re-service post-dated the filing of a pre-answer motion, and it is possible this occurred in other cases, as the precise timetable is not set forth in these decisions, and the Court does not indicate one way or another whether issue had been joined at the time the defect in service was corrected.
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