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.
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.
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), 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.