In the underlying claim, it is asserted that on October 8, 1998, Jared Dobrin
was injured on the running track at Brooklyn College when he encountered a "
sudden 3 ½ inch drop-down vertical discontinuity . . ." This is claimant's
motion for "permission to amend his complaint and serve CUNY" or alternatively
to treat his notice of intention as a claim pursuant to §10.8(a) of the
Court of Claims Act (the "Act"). Defendant cross-moves for an order dismissing
the claim on the grounds that it was never served on CUNY. It is not contested
that a notice of intention was timely served on CUNY and the Attorney General on
December 18, 1998.
See p. 1 of the May 22,
2000 affidavit of Herbert S. Subin (the "Subin Aff.") and ¶4 of the August
8, 2000 affirmation of Susan J. Pogoda (the "Pogoda Aff."). Nor is it contested
that claimant failed to serve the claim on CUNY. See p. 1 of the Subin Aff. and
¶7 of the Pogoda Aff.
Section 11 of the Act provides that in any action against CUNY, a copy of the
claim must be timely served, either personally, or by certified mail, return
receipt requested, on both CUNY and the Attorney General. "It is well
established that compliance with sections 10 and 11 of the Court of Claims Act
pertaining to the timeliness of filing and service requirements respecting
claims and notices of intention to file claims constitutes a jurisdictional
prerequisite to the institution and maintenance of a claim against the State,
and accordingly, must be strictly construed . . ." Byrne v State of New
York, 104 AD2d 782, 783, 480 NYS2d 225, 227 (2d Dept 1984), lv
denied, 64 NY2d 607, 488 NYS2d 1023 (1985) (citations omitted). As Dobrin
failed to serve CUNY with his claim, this Court lacks jurisdiction over such
claim and it must be dismissed. Nor is there any authority for permitting
claimant to now belatedly serve his claim on CUNY.
As to claimant's request for permission to treat his notice of intention as a
claim pursuant to §10.8(a) of the Act, that section provides as
A claimant who timely serves and files a notice of intention but who fails to
timely serve or file a claim may, nevertheless, apply to the court for
permission to treat the notice of intention as a claim. The court shall not
grant such application unless: it is made before an action asserting a like
claim against a citizen of the state would be barred under the provisions of
article two of the civil practice law and rules; the notice of intention was
timely served and filed, and contains facts sufficient to constitute a claim;
and the granting of the application would not prejudice the defendant.
A threshold issue must be addressed, i.e., whether the relief offered by
§10.8(a) is available to Dobrin. The statute's very language refers to a
notice of intention that was timely served and filed. However, as of
August 2, 1995, the Act was amended to provide that notices of intention no
longer need be filed with the Clerk of the Court, but rather need only be
served, as was done by Dobrin. When the Act was so amended, the language of
§10.8(a) was not simultaneously amended to delete filing as a prerequisite
for treating a notice of intention as a claim. The issue thus arises as to
whether the Legislature impliedly revoked the remedy offered by §10.8(a)
when it so amended the Act; in this Court there is a split of authority thereon.
See Konviser v State of New York, 180 Misc 2d 174, 687 NYS2d 877 (Ct Cl
1999) and Muller v State of New York, 184 Misc 2d 500, 708 NYS2d 798 (Ct
Cl 2000). In view of the unsettled nature of the law as of this writing,
claimant may wish to consider making a motion pursuant to §10.6 of the Act,
which provides that the Court may grant a claimant permission to file and serve
a late claim upon consideration of certain statutory factors. In any event, a
motion pursuant to §10.6 of the Act must be made prior to the expiration of
the underlying statute of limitations for this kind of claim under article two
of the CPLR.
Accordingly, having reviewed the parties'
IT IS ORDERED that cross-motion
no. CM-62165 is granted and claim no. 101090 of Jared Dobrin is dismissed. IT
IS FURTHER ORDERED that motion no. M-61777 is denied without prejudice.