New York State Court of Claims

New York State Court of Claims

TIEDEMAN v. THE STATE OF NEW YORK, #2001-014-507, Claim No. 102938, Motion No. M-62522


Synopsis


Application for permission to file late claim is granted.

Case Information

UID:
2001-014-507
Claimant(s):
ROBERT TIEDEMAN and ANTOINETTE TIEDEMAN The Court of Claims does not have jurisdiction over "The New York State Department of Transportation" as an entity distinct from the State of New York (see, Court of Claims Act §9). Thus, the Court sua sponte amends the caption of this application to delete the named defendant "The New York State Department of Transportation."
Claimant short name:
TIEDEMAN
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court of Claims does not have jurisdiction over "The New York State Department of Transportation" as an entity distinct from the State of New York (see, Court of Claims Act §9). Thus, the Court sua sponte amends the caption of this application to delete the named defendant "The New York State Department of Transportation."
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102938
Motion number(s):
M-62522
Cross-motion number(s):

Judge:
S. Michael Nadel
Claimant's attorney:
Meyer, Suozzi, English & Klein, P.C.By: Donnalynn Darling
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Alan B. Berkowitz, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 14, 2001
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers were read on the claimants' application for permission to file a late claim: Notice of Motion, Affirmation in Support and Exhibits annexed; Affirmation in Opposition; Reply Affirmation and Exhibit annexed.

The claimants seek permission to file a late claim because the claim herein, although served and filed within 90 days of its accrual, was served by regular mail, rather than personally upon an Assistant Attorney General, or by certified mail, return receipt requested, as required by Court of Claims Act §11(a)(i). Although the defendant has not moved to dismiss the claim, failure to serve a claim in the manner required deprives the court of jurisdiction. Hodge v State of New York, 213 AD2d 766; Dreger v New York State Thruway Authority, 81 NY2d 721.

Claimants' counsel recognized that service of the claim was improper when it was asserted in the defendant's Fourth Affirmative Defense; whereupon the instant application was brought.

Although the 90-day period to serve and file a claim or to serve a notice of intention has lapsed, Court of Claims Act §10(3), this application was filed within the relevant statute of limitation so the Court has jurisdiction to grant relief under §10(6), and has considered the factors listed therein. See, Bay Terrace Cooperative Section IV, Inc. v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979, 981.

The sole basis for the defendant's perfunctory opposition to the application is that "ignorance of service requirements is not a proper excuse." Paragraph 4, Affirmation in Opposition. While that assertion is correct, in the absence of any further opposition by the defendant, and upon consideration of all of the factors set forth in §10(6), the circumstances warrant the exercise of the Court's discretion to grant the application. It is therefore,

ORDERED, that claimants' application for permission to file a late claim against the State of New York is granted; claimants shall file the proposed claim (Exhibit A to the claimants' submission) in accordance with the provisions of Court of Claims Act §§ 11 and 11-a and Rule 206.5 of the Uniform Rules for the Court of Claims, and serve it, in accordance with the provisions of Court of Claims Act §11, either personally or by certified mail return receipt requested, upon the Attorney General, within 45 days of the date of the filing of this Order.

February 14, 2001
New York, New York

HON. S. MICHAEL NADEL
Judge of the Court of Claims