Toliver v. State

J. DAVID SAMPSON

Synopsis

Claimant, an inmate proceeding pro se, alleges two separate claims. The State brought a motion to dismiss both claims. Claimant filed a motion for relief under the continuous treatment doctrine. The State's motion is granted and claimant's motion is denied in all respects.

Case information

Defendant(s):

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Judge:

Signature date:

Official citation:

Appellate results:

See also (multicaptioned case)

UID:	2018-053-536
Claimant(s):	SAMUEL R. TOLIVER
Claimant short name:	TOLIVER
Footnote (claimant name) :
		THE STATE OF NEW YORK
Footnote (defendant name) :
		127546
Motion number(s):	M-92049, M-92099
Cross-motion number(s):
		J. DAVID SAMPSON
Claimant's attorney:	SAMUEL R. TOLIVER, Pro Se
Defendant's attorney:	HON. BARBARA D. UNDERWOOD New York State Attorney General BY: Thomas G. Ramsay, Esq. Assistant Attorney General
Third-party defendant's attorney:
		July 2, 2018
City:	Buffalo
Comments:

Decision

Claimant Samuel R. Toliver, an inmate proceeding pro se, alleges in claim no. 127546 that he was forced to attend a vocational class on January 25, 2016 involving small engines and was subjected to the dust, fumes and chemicals that were used in the classroom which affected his asthma and caused dizziness and disorientation. Claimant further alleges that he was sexually assaulted on January 25, 2016 and on January 27, 2016 by a correction officer while incarcerated at Livingston Correctional Facility (Livingston). Defendant moves in motion no. M-92049 to dismiss claim no. 127546 and, in the alternative, for an order dismissing the amended claims. Claimant files motion no. M-92099 for relief under the continuous treatment doctrine.

Court of Claims Act §§ 10 (3), 10 (3-b) and 11(a) (1) (i), provide that a claim for personal injuries caused by a negligent or intentional act of an officer or employee of the State of New York must be filed and a copy served upon the Attorney General personally or by certified mail, return receipt requested, within 90 days of accrual of the claim, unless the Claimant shall within the same 90 day period serve upon the Attorney General a notice of intention to file a claim, in which event the claim shall be filed and served within two years after accrual of the negligence claim or within one year of accrual of an intentional tort. Service by certified mail, return receipt requested, upon the Attorney General is not complete until the claim or notice of intention to file a claim is received in the office of the Attorney General (see Court of Claims Act § 11 [a] [i]).

The filing and service requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]). The failure to timely serve a copy of a notice of intention or of the claim within the statutory 90 day period and/or the failure to properly serve the notice of intention or the claim personally or by certified mail, return receipt requested, divests the Court of jurisdiction requiring dismissal of the claim (Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]; Curtis v State of New York, 206 AD2d 943 [4th Dept 1994]; Bogel v State of New York, 175 AD2d 493 [3d Dept 1991]).

On February 16, 2016, claimant served upon the Attorney General by certified mail, return receipt requested, a notice of intention to file a claim (Defendant's Exhibit A). In his notice of intention, claimant alleges that on January 25, 2016 he inhaled chemicals, fumes and dust while attending a vocational class at Livingston. In addition, he alleges that he had not been seen by a Doctor for his January 25, 2016 exposure.

On February 22, 2016, claimant filed claim no. 127546. Defendant alleges that the claim was improperly served by regular mail on February 22, 2016 and raised this objection with particularity in the sixth affirmative defense of its answer (Defendant's Exhibit C) in compliance with Court of Claims Act § 11 (c ). Attached to its motion papers as part of its Exhibit B is a copy of the envelope in which claim no. 127546 was served upon the Attorney General. This envelope shows no certified mail or return receipt sticker to indicate proper service by certified mail, return receipt requested. Insofar as claim no. 127546 was improperly served by regular mail, it is jurisdictionally defective and must be dismissed (Zoeckler v State of New York, 109 AD3d 1133 [4th Dept 2013]).

On February 25, 2016, claimant served upon the Attorney General by certified mail, return receipt requested, the first amended claim. This claim was similar to the original claim but contained fewer attachments and added a cause of action against Correction Officer Russbaugh for assault and for an alleged violation of the Fourth Amendment to the United States Constitution. On the amended claim, claimant listed the original claim no. 127546 indicating that claimant intended this claim as an amended claim. A review of the Court's Docket Sheet and the claims filed with the Court reveal that this first amended claim served on the Attorney General on February 25, 2016 was never filed with the Court. The first amended claim is a nullity as it was never filed with the Court and is a jurisdictionally defective claim. As with the one filed and served by regular mail on February 22, 2016, it cannot be cured through an amendment (Hogan v State of New York, 59 AD3d 754 [3d Dept 2009]).

On April 12, 2016, claimant served a second amended claim. (see Defendant's Exhibit F). The Court of Claims received a copy of this same document but only stamped it received and did not file it as it did not consider the document to be a claim, an amended claim, or even a pleading. Rather, it was received as an attachment only to a letter addresed to Mr. Schneiderman, the former Attorney General of the State of New York. The second amended claim shows very little similarity to the original claim except for the accrual date. This second amended claim must also be stricken as a jurisdictionally defective claim may not be cured by an amendment and a claim that has been dismissed cannot be amended (Bennett v State of New York, UID No. 2016-015-139 [Ct Cl, Collins, J., June 13, 2016]). In addition, as claimant had previously served an amended claim, it was incumbent upon claimant to move pursuant to CPLR 3025 and section 206.7 (b) of the Uniform Rules for the Court of Claims for permission to amend the claim. His failure to so move requires that this amended claim be stricken.

On January 9, 2017 and on January 17, 2017, claimant served upon the Attorney General the third and fourth amended claims (Defendant's exhibits H and J). These amended claims were both filed with the Court on January 12, 2017 as the first and second amended claims. These amended claims must also be stricken as claimant again failed to move the Court pursuant to CPLR 3025 and section 206.7 (b) of the Uniform Rules for permission to amend the claim.

On April 9, 2018, claimant filed a document entitled "NOTICE OF MOTION TO EXCEED TO TRIAL BY JURY." This document was filed with the Court as claimant's motion no. M-92099. It does not appear that these motion papers were ever served upon the Attorney General's Office. On April 19, 2017, claimant filed a document entitled "NOTICE OF MOTION EXCEED TO TRIAL IN OPPOSITION REPLY MOTION TO DISMISS." These papers were filed as reply papers. A portion of the reply papers filed with the Court were served upon the Attorney General's Office and received as motion no. M-92099. The failure of claimant to file and serve the same motion papers requires the dismissal of claimant's motion.

Were the Court to consider claimant's papers as a request for a jury trial, such a motion would be denied. Art. 6, § 18 (b) of the New York State Constitution provides that the legislature may provide the manner of trial involving claims against the state. Pursuant to Court of Claims Act § 12 (3), "Claims shall be heard and judgments thereon rendered by one judge." In addition, the Seventh Amendment to the United States Constitution preserving a right to a trial by jury at common law, refers only to civil proceedings brought in the United States Federal Courts (Malinski v People of New York, 324 US 401 [1945]; Pearson v Yewdall, 95 US 294 [1877]). Thus, were the Court to consider claimant's papers as a request for a jury trial of claim no. 127546, such a motion would be denied (Fulton v State of New York, UID No. 2014-041-043 [Ct Cl, Milano, J., July 22, 2014]).

Finally, were the Court to consider claimant's reply papers as a separate motion in opposition to defendant's motion to dismiss, then they too would provide no relief. Claimant's reply papers seem to be arguing that claim no. 127546 should not be dismissed because of the continuous treatment doctrine. Pursuant to the continuous treatment doctrine, the statute of limitations can be tolled until the end of treatment "when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint" (Johanson v Sullivan, 68 AD3d 1303, 1304 [3d Dept 2009], quoting Iazzetta v Vicenzi, 200 AD2d 209, 211 [3d Dept 1994], lv dismissed 85 NY2d 857 [1995]). The claim is not being dismissed, however, on the basis of any statute of limitations. Thus, the continuous treatment doctrine is not relevant.

Based on the foregoing, defendant's motion no. M-92049 is granted and claim no. 127546 and all of the amended claims are dismissed. Claimant's motion no. M-92099 is denied in all respects.

July 2, 2018

Buffalo, New York

J. DAVID SAMPSON

Judge of the Court of Claims The following were read by the Court: Regarding M-92049 1. Notice of motion no. M-92049 and affirmation of Assistant Attorney General Thomas G. Ramsay dated March 28, 2018, with annexed Exhibits A-K; 2. Claimant's opposition to defendant's motion dated April 16, 2018; and 3. Affirmation of Assistant Attorney General Thomas G, Ramsay dated May 4, 2018 in further support of defendant's motion no. M-92049. Regarding M-92099 1. Notice of motion no. M-92099 dated March 16, 2018 and unsworn statement of Samuel R. Toliver (never served upon defendant); 2. Claimant's opposition to defendant's motion no. M-92049 to dismiss and received by defendant as claimant's motion no. M-92099 and unsworn statement of Samuel R. Toliver dated April 16, 2018 (This is the same document as listed as item no. 2 above); and 3. Affirmation of Assistant Attorney General Thomas G. Ramsay dated May 4, 2018 in opposition to claimant's motion no. M-92099 (This is the same document as listed as item no. 3 above).