New York State Court of Claims

New York State Court of Claims

OAKLEY v. STATE OF NEW YORK, #2000-015-026, Claim No. 094016, Motion No. M–61131


Synopsis


The making of a motion for permission to serve and file a late claim does not give the Court jurisdiction of a previously commenced claim that was not timely or properly served upon the Attorney General.

Case Information

UID:
2000-015-026
Claimant(s):
JUDITH OAKLEY and SPENCER OAKLEY
Claimant short name:
OAKLEY
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
094016
Motion number(s):
M–61131
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Law Offices of James J. KillerlaneBy: Paul X. Lima, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney GeneralBy: Vincent M. Cascio
Third-party defendant's attorney:

Signature date:
April 7, 2000
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:
REVERSED 724 NYS2d 867
See also (multicaptioned case)



Decision


The motion of the defendant for an order dismissing the claim for lack of jurisdiction is granted. On July 22, 1994, claimant, a passenger in the backseat of a car driven by her daughter, was allegedly injured in a motor vehicle accident that occurred on Route 139 in Somers, County of Westchester, New York. A notice of intention to file a claim was served by ordinary mail and received by the Attorney General and by the Clerk of the Court on October 25, 1994. The claim was received in the Office of the Attorney General on April 30, 1996 and filed with the Clerk of the Court on May 13, 1996. On May 24, 1996, the defendant served its answer alleging that the Court lacked jurisdiction because the notice of intention was filed with the Clerk of the Court and received by the Attorney General by ordinary mail ninety-five days following the accrual of the claim. Discovery is complete and the trial of the liability issue has been directed to commence on May 16, 2000. By this motion, the defendant seeks dismissal based upon the late and improper service and filing of the notice of intention to file a claim.

In opposing the motion, the claimants do not contend that the notice of intention was timely and properly served and filed. Instead, they point out that they made a motion for permission to file a late claim dated July 30, 1996 which was never placed upon the motion calendar of a judge of this Court by the Clerk's office due to the failure of the claimants to annex a proposed claim to the motion papers. By letter dated August 19, 1996, Acting Chief Clerk David B. Klingaman advised claimants counsel that "[n]o motion number will be assigned, NOR WILL YOUR MOTION BE HEARD BY THE COURT until your motion papers are completed in accordance with RULE 206.9 of the UNIFORM RULES FOR THE COURT OF CLAIMS." Claimants set forth that by notice of motion dated December 6, 1996 they resubmitted their motion for permission to serve and file a late claim. By letter dated December 19, 1996, Chief Clerk Klingaman advised claimants' counsel:
Dear Counsel:

This will acknowledge receipt in this office of your notice of motion for permission to file a late claim. Please be advised that your motion is deficient because you have failed to submit a proposed claim.

Before you resubmit your motion papers, please reserve the above indicated document(s) upon all appropriate parties. The affidavit of service must be dated later than the date of this letter.
Claimants' counsel denies receiving the December 19, 1996 letter and contends that it was his belief that the motion was submitted and for the past three plus years he has been awaiting a decision. Claimants' counsel argues that since the second motion for permission to file a late claim is still pending that this Court should grant that motion and deny the dismissal motion.

Whether or not claimants have a pending motion for permission to serve and file a late claim is not relevant to whether the Court must dismiss this claim for lack of jurisdiction. The jurisdictional defenses are raised with the requisite specificity in the answer (Villa v State of New York, 228 AD2d 930; Flushing Natl. Bank v State of New York, 210 AD2d 294). The failure to comply with the time limitations set forth in Court of Claims Act section 10 deprives the Court of jurisdiction to determine a claim (State of New York v Dewey, 260 AD2d 924). The Court of Claims lacks jurisdiction when a notice of intention is received by the Attorney General more than 90 days after the accrual of a negligence claim (Mallory v State of New York, 196 AD2d 925, 926). Likewise, the Court is without jurisdiction to determine a claim when the service is by ordinary mail rather than personally or by certified mail, return receipt requested (Philippe v State of New York, 248 AD2d 827). Service of the notice of intention upon the Attorney General by ordinary mail more than 90 days after the accrual of the claim deprives this Court of jurisdiction over the claim and requires the granting of the dismissal motion.


April 7, 2000
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated January 26, 2000;
  2. Affirmation of Vincent M. Cascio dated January 26, 2000, with exhibits;
  3. Affirmation in opposition of Paul X. Lima dated February 23, 2000, with exhibits.