New York State Court of Claims

New York State Court of Claims

FORKHAMER v. THE STATE OF NEW YORK, #2001-009-034, Claim No. 103266, Motion No. M-63598


Synopsis


Claimants' application for permission to serve and file a late claim was granted.

Case Information

UID:
2001-009-034
Claimant(s):
James Forkhamer, Timothy M. Burke, John D. Monticth, Jason A. Johnson, Walter Szymanski, Jerry Walts, Michael S. Metott, Dan Sanderson, James C. Barker, Shawn C. Gilbert, Michael R. Sherman, Trevor J. Marcellus, Ken Atkinson, James L. Parkhurst and Walter A. Rice, Jr.
Claimant short name:
FORKHAMER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103266
Motion number(s):
M-63598
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY, JR.
Claimant's attorney:
LAW OFFICE OF JAMES K. EBY
BY: James M. Nicholson, Esq.,Of Counsel.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Roger B. Williams, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
August 7, 2001
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimants seek permission to serve and file a late claim pursuant to Court of Claims Act, § 10(6).

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affidavit in Support, with Exhibits 1,2

Correspondence Dated July 13, 2001 from Roger B. Williams, Esq., Assistant Attorney General 3


Filed Papers: Claim, Answer

As set forth in the filed claim[1], claimants seek money damages in the nature of lost wages resulting from physical damage to their place of employment allegedly caused by the negligence of the State. Claimants allege that on February 19, 1999, a New York State Department of Transportation snowplow or truck was left unattended, and rolled into a building where claimants were working, causing damage to the building, requiring claimants' employer to temporarily close his business, and resulting in a loss of wages to the claimants. As set forth in the moving papers herein, on May 10, 1999, claimants mailed a notice of intention to file a claim to the Attorney General, utilizing express mail (overnight delivery) of the United States Postal Service (see, Exhibit A to Items 1,2). Subsequently, a claim was served upon the Attorney General by certified mail, return receipt requested, on September 27, 2000. The claim was then filed with the Clerk of the Court of Claims on October 24, 2000.

A claim alleging acts of negligence against the State must be served on the Attorney General and filed with the Clerk of the Court of Claims within 90 days of accrual, unless a notice of intention is served upon the Attorney General within such 90 days (Court of Claims Act, § 10[3]). If a notice of intention is so served upon the Attorney General, the claim must then be served and filed within two years from the date of accrual. Additionally, Court of Claims Act, § 11(a) requires that a claim or a notice of intention must be served upon the Attorney General either personally or by certified mail, return receipt requested.

In this matter, although the notice of intention was timely served within 90 days of the date of accrual, the notice was served by overnight, express mail, and not by certified mail, return receipt requested, as required by statute. Service by United States Postal Service express mail, however, does not comply with the statute, and is not valid (Hodge v State of New York, 158 Misc 2d 438, affd 213 AD2d 766).

The provisions relating to the time and manner of service and filing are jurisdictional prerequisites to the maintenance of a claim, and as such must be strictly construed (Greenspan Bros. v State of New York, 122 AD2d 249). As a result, this Court does not have the authority to cure or overlook defects in the time and/or manner of service and filing, assuming that such defenses are properly raised by the defendant either in its responsive pleading or by a motion to dismiss made prior to service of said responsive pleading, as required by Court of Claims Act, § 11(c).

Accordingly, even though the notice of intention was timely served upon the Attorney General in this claim, it must be viewed as a nullity since it was not served in accordance with statute. As a result, claimants were therefore not entitled to the extension of time in which to serve and file a claim provided by § 10(3). Since the improperly served notice of intention did not provide claimants with the additional time in which to serve and file a claim, this claim had to be served and filed within 90 days from accrual of the cause of action. As a result, even though Claim No. 103266 was eventually served and filed within two years from the date of accrual (which would have been timely had the notice of intention been properly served upon the Attorney General), the claim was served and filed well beyond the 90 day time period set forth in § 10(3).

Since it is undisputed that Claim No. 103266 was served and filed beyond the time limitations set forth in § 10(3), it is subject to dismissal. In its response to this motion, however, defendant did not seek such relief. The Court, however, in the interest of judicial economy and on its own motion, hereby dismisses the claim.

As a result, it is now necessary for the Court to consider claimants' application for late claim relief.

In order to determine an application for permission to serve and file a late claim, the Court must consider, among other relevant factors, the six factors set forth in § 10(6) of the Court of Claims Act. The factors set forth therein are: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears meritorious; (5) whether substantial prejudice resulted from the failure to timely file and the failure to serve upon the Attorney General a timely claim or notice of intention to file a claim; and (6) whether any other remedy is available. The Court is afforded considerable discretion in determining whether to permit the late filing of a claim (see, Matter of Gavigan v State of New York, 176 AD2d 1117).

In the moving papers, claimants have not addressed the factors of excuse or other available remedies. For purposes of this motion, however, claimants have asserted a meritorious claim, alleging negligence in leaving the State-owned truck or plow unattended.

Additionally, even though it was not properly served, the notice of intention which was received by the Attorney General did provide the State with notice of the essential facts, and an opportunity to investigate the claim, within 90 days of its occurrence. As a result, and as indicated in the correspondence from the Assistant Attorney General handling the defense of this claim (see, Item 3), the State will not be prejudiced if the Court grants this application.

The Court may in its discretion place as much or as little weight on any of the six factors to be considered pursuant to the statute. Under the current law "[n]othing in the statute makes the presence or absence of any one factor determinative" (Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979) and none of the factors can require denial as a matter of law.

Upon weighing and considering all of the factors set forth herein, and viewing all of the factors set forth in Court of Claims Act, Section 10(6), it is the opinion of this Court that claimants should be allowed to file their proposed claim.

Incidentally, in its review of the claim and filed papers submitted with this motion, the Court has noted an apparent misspelling in the caption of this claim. When preparing the new claim permitted by this order, it is suggested that counsel for the claimants verify the correct spelling of the name of each claimant.

Accordingly, it is

ORDERED, that Claim No. 103266 is hereby DISMISSED, sua sponte; and it is further

ORDERED, that Motion No. M-63598 is hereby GRANTED, and claimants are directed to serve their claim upon the Attorney General and to file the claim (such claim to be identical to Claim No. 103266) with the Chief Clerk of the Court of Claims within 45 days from the date of filing of this decision and order in the Clerk's office, with such service and filing to be in accordance with the Court of Claims Act, with particular reference to Sections 10, 11 and 11-a, and the Uniform Rules for the Court of Claims.

August 7, 2001
Syracuse, New York

HON. NICHOLAS V. MIDEY, JR.
Judge of the Court of Claims




[1] Claimants did not submit a proposed claim with this application, as required by Court of Claims Act, § 10(6). Since there is an existing claim, however, the Court will consider the filed claim as the proposed claim for purposes of deciding this motion.