Storms v State of New York

[*1] Storms v State of New York 2007 NY Slip Op 51636(U) [16 Misc 3d 1129(A)] Decided on June 29, 2007 Ct Cl Siegel, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 29, 2007
Ct Cl

Michael Storms, Claimant,

against

State of New York, Defendant.



113133



APPEARANCES:For Claimant:

OFODILE & ASSOCIATES, P.C.

By: ANTHONY C. OFODILE, ESQ.

For Defendant:

HON. ANDREW M. CUOMO

Attorney General of the State of New York

By: JOEL L. MARMELSTEIN, ESQ.

Assistant Attorney General

Norman I. Siegel, J.

This matter comes before the court on defendant's pre-answer motion to dismiss the claim, pursuant to CPLR Rule 3211 (a) (2) and CPLR Rule 3211 (a) (8), on the grounds that there is a lack of both personal and subject matter jurisdiction. It is the contention of defendant [*2]that the claim was not timely filed and therefore the court lacks jurisdiction. Claimant opposes the motion and seeks sanctions for a frivolous motion.

The factual allegations concerning timeliness are not disputed. Claimant seeks damages for personal injuries allegedly sustained as a result of a slip and fall occurring on December 22, 2004 at the Oneida Correctional Facility. A Notice of Intention was served by certified mail, return receipt requested, on January 28, 2005.

Thereafter, the claim was personally served on the Attorney General on December 21, 2006. The claim was filed in the office of the Clerk of the Court of Claims on December 22, 2006.

It is the contention of the Attorney General that Court of Claims Act § 10 requires that, under the facts of this case, the claim had to be both served and filed within two years from the date of the accrual. The Attorney General further asserts that since the claim accrued on December 22, 2004, it was necessary for both service and filing to be completed on or before December 21, 2006.

The claimant does not dispute the above stated facts. However, claimant does dispute defendant's legal conclusion that filing and service had to be completed on December 21, 2006 rather than on December 22, 2006. The well-established law supports claimant's position.

Court of Claims Act § 10 (3) provides that:

[a] claim to recover damages for injuries to property or for personal injuries caused by the negligence or unintentional tort of an officer or employee of the state while acting as such officer or employee, shall be filed and served upon the attorney general within ninety days after the accrual of such claim, 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 accrual of such claim [emphasis added].

General Construction Law § 20 provides in relevant part:

[a] number of days specified as a period from a certain day within which or after or before which an act is authorized or required to be done means such number of calendar days exclusive of the calendar day from which the reckoning is made. . . . In computing any specified period of time from a specified event, the day upon which the event happens is deemed the day from which the reckoning is made. The day from which any specified period of time is reckoned shall be excluded in making the reckoning [emphasis added].

Quite simply put, since the claimed slip and fall occurred on December 22, 2004 the claimant would have had through the day of December 22, 2006 within which to perfect the claim (Bacalokonstantis v Nichols, 141 AD2d 482; Fitzpatrick v State of New York, UID No. 2001-018-086, Claim No. 103293, Motion No. M-62756).

As the Court of Appeals has explained, with even more simplicity than the General Construction Law, "[t]he first day is now excluded in the computation of years as well as in the computation of days, weeks or months" (Tismer v New York Edison Co., 228 NY 156, 164).

Defendant's pre-answer motion to dismiss the claim is denied. [*3]

More troubling to the court though, is the procedural context in which this motion has come to be heard. According to the opposition papers submitted by claimant's counsel, following the service of defendant's motion the claimant's counsel gave the State an opportunity to withdraw its motion via a letter dated January 16, 2007, which letter outlined and reviewed the applicable law in opposition to the defendant's position. In the letter, claimant's counsel advised that if the motion was not withdrawn before a formal response was required, that claimant's counsel would seek sanctions. Claimant's counsel stated that this letter was later followed with telephone contact. Nevertheless, according to claimant's attorney, the Assistant Attorney General refused to withdraw the motion.

In addition to opposing the State's motion, claimant's counsel seeks sanctions on the grounds that defendant's motion is both frivolous and sanctionable. Under the circumstances as relayed by claimant's counsel, sanctions may in fact be justified. However, the court has not received comment from the Attorney General on the sanction issue. As a result, and in the absence of a hearing, it is premature to decide the sanction issue at this time (22 NYCRR § 130-1.1 [d]). Furthermore, it would unfairly burden claimant's counsel to be forced to attend a hearing in Oneida County, far from his legal offices, for the sole purpose of determining sanctions, if any. As a result, the claimant's request for sanctions is adjourned sine die, with the issue to be considered at a later date, when both counsel are in court for other matters related to this case.