New York State Court of Claims

New York State Court of Claims

DOBRIN v. THE CITY UNIVERSITY OF NEW YORK, #2000-016-091, Claim No. 101090, Motion Nos. M-61777, CM-62165


Synopsis


Section 10.8 motion was granted and cross-motion dismissing claim was granted.

Case Information

UID:
2000-016-091
Claimant(s):
JARED DOBRIN The caption has been amended to reflect that the City University of New York ("CUNY") is the sole proper defendant.
Claimant short name:
DOBRIN
Footnote (claimant name) :

Defendant(s):
THE CITY UNIVERSITY OF NEW YORK
Footnote (defendant name) :
The caption has been amended to reflect that the City University of New York ("CUNY") is the sole proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101090
Motion number(s):
M-61777
Cross-motion number(s):
CM-62165
Judge:
Alan C. Marin
Claimant's attorney:
Subin Associates, L.L.P.By: Herbert S. Subin, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Susan J. Pogoda, AAG
Third-party defendant's attorney:

Signature date:
November 17, 2000
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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.[1] 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 follows:

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' submissions,[2] 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.



November 17, 2000
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [1]There is some confusion as to what claimant served on CUNY as his notice of intention. Claimant states that what was served is attached as Exhibit A to the Subin Aff. This is a document entitled "Notice of Claim," which has a caption listing a number of defendants, including CUNY. Defendant states that what was served is attached as Exhibit A to the Pogoda Aff., a document entitled "Notice of Intention to File Claim," which lists the state as a defendant. In view of the parties' agreement that a notice of intention was served and in view of the fact that the text of the different versions is virtually identical, the Court will assume, for the purposes of this motion, that the document annexed as Exhibit A to the Subin Aff. is a copy of the notice of intention served on CUNY on December 18, 1998.
  2. [2]Along with the pleadings, the following were reviewed: claimant's notice of motion with affidavit in support and Exhibits A-C; defendant's notice of cross-motion with affirmation in support and Exhibits A-F; and claimant's affidavit in opposition with Exhibit A.