New York State Court of Claims

New York State Court of Claims

BAKHT v. THE STATE OF NEW YORK, #2001-014-519, Claim No. 103251, Motion Nos. M-62690, CM-62786


Synopsis


Defendant's motion to dismiss claim as untimely is granted. Claimant's cross motion seeking permission to file a late claim is granted.

Case Information

UID:
2001-014-519
Claimant(s):
FAYYAZ BAKHT The Court of Claims does not have jurisdiction over individuals (see, Smith v State of New York, 72 AD2d 937, 938), nor does it have jurisdiction over New York State Lottery 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 named defendants New York State Lottery and Raj Kumar Lalwani.
Claimant short name:
BAKHT
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court of Claims does not have jurisdiction over individuals (see, Smith v State of New York, 72 AD2d 937, 938), nor does it have jurisdiction over New York State Lottery 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 named defendants New York State Lottery and Raj Kumar Lalwani.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103251
Motion number(s):
M-62690
Cross-motion number(s):
CM-62786
Judge:
S. Michael Nadel
Claimant's attorney:
Mallilo & GrossmanBy: Francesco Pomara, Jr.
Defendant's attorney:
Eliot Spitzer, Attorney General
By: Grace A. Brannigan, Assistant Attorney Generaland Susan J. Pogoda, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 27, 2001
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on the defendant's motion to dismiss the claim and on the claimant's cross motion seeking permission to file a late claim: Notice of Motion, Affirmation in Support and Exhibit annexed; Notice of Cross Motion, Affirmation in Support and Affirmation in Opposition and Exhibits annexed; Affirmation in Opposition and in Further Support of the State's Motion and Exhibit annexed. Filed paper: Claim.

The defendant moves to dismiss the claim on the ground that while a Notice of Intention was properly served within 90 days of the claim's accrual, the claim was served more than two years after the accrual date. Court of Claims Act §10(3). The foregoing is not disputed by the claimant.[1] For this reason alone the Court lacks jurisdiction over the claim, and it must be dismissed. Byrne v State of New York, 104 AD2d 782, lv denied 64 NY2d 607, Mallory v State of New York, 196 AD2d 925.

The claimant's cross motion, seeking permission to file a late claim 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 delay in filing the claim, resulting from the failure to serve it within the time required, is not excusable. According to claimant's counsel it is attributable to a misunderstanding of the law.

In opposition to the claimant's application, it is the defendant's position that neither the notice of intention nor the proposed claim[2] describe the nature of the claim in sufficient detail to satisfy the requirements of Court of Claims Act §11(b), so that the notice of intention did not provide notice of the essential facts constituting the claim, which concerns an accident involving a vehicle operated by the claimant and one operated by an employee of the defendant, nor can the proposed claim be said to be meritorious.

The requirements of §11(b) that a claim shall state the "time when and place where" it arose, and "the nature of same" have consistently been applied in the context of their purpose, which is to enable the State to investigate the claim promptly and to ascertain its own liability. The claim "must be specific enough so as not to mislead, deceive or prejudice the rights of the State. In short, substantial compliance with section 11 is what is required." Heisler v State of New York, 78 AD2d 767. See also, Riefler v State of New York, 228 AD2d 1000, 1001 [there must be a sufficiently detailed description to enable the State to investigate the claim and promptly ascertain the existence and extent of its liability]; Harper v State of New York, 34 AD2d 865 [it must convey notice to the State to enable it to properly investigate, defend, and/or settle the claim].

By this standard the notice of intention and the proposed claim satisfy the requirements of Court of Claims Act §11(b). In addition to providing an adequate description of when and where the accident occurred, both contain the most critical items of information necessary to enable prompt and effective investigation by the State of an allegation of negligent operation of a State motor vehicle: the name of the State employee alleged to have been operating the vehicle, and the registration number of the State vehicle. It is thus apparent that the State had notice of the essential facts constituting the claim, and had an opportunity to investigate the circumstances underlying the claim. The failure to file a timely claim has not resulted in substantial prejudice to the State.

The affidavit of the claimant, Exhibit E, sufficiently describes the circumstances of the accident to demonstrate the appearance of merit. The physician's affirmation, Exhibit F to the claimant's submission, is sufficient to demonstrate for the purpose of Court of Claims Act §10(6) that the claimant sustained serious injury. Insurance Law §§ 5102(d), 5104.

It does not appear that the claimant has any other available remedy.

Having considered the relevant statutory factors, Bay Terrace, supra, it is therefore,

ORDERED, that claimant's application for permission to file a late claim against the State of New York is granted; claimant shall file the proposed claim in the same form as Claim No. 103251 (which has been dismissed) except that it shall be denominated a "Claim" and it shall name only the State of New York as defendant, 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.

March 27, 2001
New York, New York

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




[1] Although it is asserted by counsel for the claimant that the claim was timely filed, it appears from the Court's records that it was not.
[2] The Court will consider the claim which has been dismissed as the proposed claim.