OGC 1: Claims Procedures For The Office Of General Counsel
New York State Department of Environmental Conservation
DEC Program Policy
Issuing Authority: Office of General Counsel
Title: Claims Procedures for the Office of General Counsel
Date Issued: November 26, 1997
Latest Date Revised: January 13, 2005
This document establishes the Office of General Counsel's (OGC) policy for the processing of claims for personal injury or property damage resulting from the alleged negligence or wrongful act of a State employee. It also addresses contract claims.
Related References: Court of Claims Act, Section 10(3); and Public Officers Law, Sections 17-2 and 17-4.
It is the policy of the OGC to track all claims against the Department in a timely fashion and work with the Office of the Attorney General to ensure that all claims are addressed.
III. Purpose and Background
A properly served and filed claim commences litigation for money damages against the State in the Court of Claims. To be valid, the claim must be served upon the Attorney General's Office and then filed with the Court of Claims. Under Section 10 of the Court of Claims Act, a claim for personal injury or property damage resulting from the negligence or wrongful act of a State employee, or a claim arising out of a contract dispute with the State, must be filed and served within 90 days of the accrual of such claim, unless the claimant serves on the Attorney General's Office, a written notice of intention to file a claim (NI) within this time. The claim must then be served and filed within two years of the accrual of the claim, unless subject to a shorter statute of limitations (i.e., false arrest or malicious prosecution, which are subject to a one year statute of limitation).
NI's are typically received from the Attorney General's Office (generally the Litigation and Claims Bureau). Based on the Department's past experience, only slightly more than one-third of NI's actually ripen into filed claims. Bearing these facts in mind, in order to treat potential claims more efficiently and with the appropriate weight, the following procedures should be followed.
The Division of Legal Affairs in the Office of General Counsel maintains a file of all NI's and Claims against the Department. Claims are usually received by the General Counsel and assigned to the Division of Legal Affairs for processing. The Division of Legal Affairs issues protocol for all OGC staff to follow concerning the processing of claims (see memo dated August 9, 2004).
This policy supersedes DEC Policy Program ID: OGC-1, issued by Frank V. Bifera on November 26, 1997.
The responsibility for interpretation and update of this document shall reside with the Office of General Counsel, Division of Legal Affairs. Staff of the Division of Legal Affairs are available to provide advice and assistance in the interpretation of this policy.
Any staff receiving an NI or Claim from any source other than the DEC Office of General Counsel should immediately send it (hand deliver if received by Central Office personnel) to the Division of Legal Affairs, Attention: Division Director.
NI's or Claims which the Division of Legal Affairs receives from a source other than the Attorney General's Office will be sent to that Office.
NI's relating to significant property damage, personal injury or wrongful death will be directly assigned by the General Counsel to an attorney for case management. All NI's related to contract claims will be directly assigned to the contracts attorney for case management. Attorneys should use their discretion whether to prepare a litigation advisory advising Executive staff of such cases.
A computer index of NI's received in OGC will be maintained and an Alert Memorandum (copy attached) with a copy of the NI will be sent to appropriate staff. The memorandum directs staff to gather any information or evidence that might be required if a claim is filed. Please note that such material should be factual only. It is essential that staff work with the regional, program or enforcement attorney in conducting any investigation, thereby preserving attorney client privilege. Staff may be contacted by an investigator from the Attorney General's Office in connection with a claim. If so, staff should advise the regional, program or enforcement attorney.
Many NI's filed with the Department involve incidents at facilities managed by the Division of Operations, therefore, the Operations program attorney should be copied on all documents relating to claims which impact departmental operations, such as campgrounds, fish hatcheries, ski resorts or educational camps. The Lands & Forests program attorney should be copied if the basis for the NI occurred on State lands that may impact the Division of Lands and Forests. Please contact the Division of Legal Affairs for assistance if you have any questions regarding the NI.
Lastly, please note that Section 17 of the Public Officers Law ("POL") provides for the defense and indemnification of state officers and employees. POL §17-2(a) states "... the state shall provide for the defense of the employee in any civil action or proceeding in any state or federal court arising out of any alleged act or omission which occurred or is alleged in the complaint to have occurred while the employee was acting within the scope of his public employment or duties ...". In accordance with POL §17-4, the employee must request that the State provide for his or her defense by delivering to the Attorney General, either the original or a copy of the summons, complaint, etc., within five (5) days after being served. The regional, program or enforcement attorney assigned to the case should assist the employee in preparing a request for representation and include all necessary papers.
M E M O R A N D U M
TO: (Program Director) or (Regional Director)
FROM: Alison H. Crocker
SUBJECT: Alert Memorandum - (Case Name)
This memorandum is to alert you that this office has received the attached Notice of Intention to file a claim against the State. Upon consultation with the Regional, program or enforcement attorney, please preserve any accident or incident reports, notes or other documents in your files concerning this matter. Also, please make a list of staff members or other individuals who witnessed or have knowledge of the incident, and encourage them to document their recollection of what occurred. Documentation should be solely factual in nature and should be marked "FOIL AND DISCOVERY EXEMPT - PREPARED AT THE REQUEST OF ATTORNEY IN ANTICIPATION OF LITIGATION." This information will be valuable in defending the State's position if a claim is filed later.
Unless specifically directed by this office, members of your staff should not discuss the facts or circumstances of this matter with anyone outside the Department. Please ensure that all employees understand this policy.
Please call me at 402-9185 if you have any questions.
Director, Division of Legal Affairs
cc: J. McKeon - w/att.
(Program Attorney) - w/att.
(Regional Attorney) - w/att.
File - w/att.
M E M O R A N D U M
TO: (Assigned Lead Attorney)
FROM: Alison H. Crocker
SUBJECT: (Case Name)
Via email, please immediately provide Lynne Coshun with a completed LITS form. Attached for your reference is:
________ Notice of Intention to File a Claim
________ Alert Memo - Notice of Intention to File a Claim
________ Background Material
Thank you for your prompt attention to this matter.
Director, Division of Legal Affairs
cc: (back-up attorney)
LITS CASE DETAIL / EVENT INPUT FORM
LITS NUMBER: ______________________________
CASE NAME: ______________________________
REFERRAL DATE: ______________________________
CASE TYPE: (Please circle / underline one)
Article 78 / Federal / Declaratory Judgment / Bankruptcy / Eminent Domain Claim / Criminal / Enforcement / Cost Recovery / Order to Show Cause / Other
PROGRAM: (Please circle / underline one)
Air Resources / CBS / Coastal Erosion / Fish & Wildlife / Flood Protection / Freshwater Wetlands / GENC / Hearings / Human Resources / Lands & Forest / Law Enforcement / Marine Resources / Mineral Resources / MPIS / Operations / PBS / Pesticides / RADI / Real Property / Regulatory Affairs / SEQRA / Solid & Haz. Materials / Spills / Superfund / Tidal Wetlands / Water
STATUTE / REGULATION: ______________________________
DATE OPENED: ______________________________
ASSIGNED ATTORNEY: ______________________________
DOL #: ______________________________
COURT #: ______________________________
DATE CLOSED: ______________________________