New York State Court of Claims

New York State Court of Claims

HWANG v. THE STATE OF NEW YORK, #2000-014-526, Claim No. 94968, Motion Nos. M-61539, CM-62041


Claim alleging negligence by the County Clerk in the recording of a judgment is dismissed on motion; the claim was served more than 90 days after its accrual on the date the encumbered property was transferred. Claimants' application for permission to file a late claim is denied; it was filed more than 3 years after the accrual of the claim.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
S. Michael Nadel
Claimant's attorney:
Trop & SpindlerBy: Gary M. Trop
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Anne Pavlides, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 3, 2000
New York

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on the defendant's motion to dismiss the claim, and on the claimants' motion to dismiss the First Affirmative Defense and seeking permission to file a late claim: Notice of Motion, Affirmation in Support and Exhibits annexed, Memorandum of Law; Notice of Cross Motion, Affidavit and exhibits annexed; Memorandum of Law; Affirmation in Opposition to Claimants' Cross Motion and Exhibits annexed. The defendant's motion to dismiss the claim is based on the ground, among others, that it was served more than 90 days after its accrual.[1] In addition to opposing the motion, the claimants cross move to dismiss the First Affirmative Defense and, in the event that the claim is found to be untimely, seek permission to file a late claim.[2]

The claim alleges negligence on the part of the defendant in that a judgment obtained by the claimants, and filed with the County Clerk of Queens, was incorrectly noted as satisfied, so that the judgment debtor was able to transfer title to the real property encumbered by the judgment.

It is not disputed that the claim herein was properly served on the Attorney General on October 18, 1996. In order for that service to have been timely (see, Court of Claims Act §10[3]), the claim must have accrued no earlier than July 20, 1996.

The claim itself alleges that it accrued on July 23, 1996, alleged in the claim to be the date on which "it was discovered" that the Queens County Clerk had made the erroneous entry.

The law is clear that the claim herein accrued on the date on which the property was transferred by the judgment debtor, which, according to the Answers to Interrogatories of claimant Tom Hom, dated September 8, 1999 (Exhibit J to defendant's Affirmation in Support; see, also, ¶4 of Affidavit of counsel in support of claimants' cross motion), was September 29, 1994. Flushing National Bank v State of New York, 156 Misc 2d 979, affd 210 AD2d 294, lv den 86 NY2d 706.

Upon consideration of the papers submitted, therefore, the Court finds that the claim accrued on September 29, 1994, more than 90 days before it was served, and more than 3 years before the claimants' application for permission to file a late claim was filed on July 18, 2000. The accrual date of the claim is thus determinative of both the motion and the cross motion. The defendant's motion is granted, the claim is dismissed. The claimants' cross motion is denied; the Court is without jurisdiction to entertain the application for permission to file a late claim, which was filed beyond the relevant statute of limitation. Nor does the Court have jurisdiction to consider the claimants' application to the extent that it requests nunc pro tunc relief with respect to late filing, as of the date of service and filing of the claim on October 18, 1996. See, Byrne v State of New York, 104 AD2d 782, at 783: "Where the time within which an application to file a late claim may be granted has elapsed (Court of Claims Act, §10, subd 6) a claimant may not be relieved from complete compliance with the prescribed statutory procedures for the filing and service of a claim or notice of intention to file as such failure creates a jurisdictional defect and the court is without discretionary power to grant nunc pro tunc relief [citation omitted]."

In accordance with the foregoing, the defendant's motion is granted; the claim is dismissed. The claimants' cross motion, seeking permission to file a late claim is denied.

October 3, 2000
New York, New York

Judge of the Court of Claims

[1]The timeliness of the filing of the claim, on October 18, 1996, is not at issue. It was not raised in the First Affirmative Defense in the defendant's Answer. See, Court of Claims Act §11(c).
[2]The Court has considered the claimants' submission, which was served upon the Attorney General one day late.