New York State Court of Claims

New York State Court of Claims

MARKEL INSURANCE v. THE STATE OF NEW YORK, #2001-019-522, Claim No. 103783, Motion No. M-63226


Synopsis


State's motion for dismissal due to Claimant's failure to comply with Court's prior 10 (6) Order denied; Court amends its own prior 10 (6) Order to enlarge time for compliance.

Case Information

UID:
2001-019-522
Claimant(s):
MARKEL INSURANCE OF CANADA, A/S/O ROCKTON TRANSPORT O/B ROCKTON LEASING, LTD.
Claimant short name:
MARKEL INSURANCE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103783
Motion number(s):
M-63226
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
SMITH, SOVIK, KENDRICK & SUGNET, P.C.BY: Patrick B. Sardino, Esq., of counsel
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: James E. Shoemaker, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
April 11, 2001
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The State of New York (hereinafter "State") moves to dismiss this Claim pursuant to CPLR 3211 on the grounds that Claimant failed to comply with the terms of this Court's prior Decision and Order granting permission to serve and file a late claim. (Markel Insurance et al v State of New York, Ct Cl., December 8, 2000, Lebous, J., Claim No. None, Motion No. M-62579).


The Court has considered the following papers in connection with this motion:

  1. DECISION & ORDER, Ct Cl., Lebous, J., December 8, 2000, Claim No. None, Motion No. M-62579.
  2. Claim, filed February 7, 2001.
  3. Notice of Motion No. M-63226, dated March 13, 2001, and filed March 15, 2001.
  4. Affirmation of James E. Shoemaker, AAG, in support of motion, dated March 13, 2001, with attached exhibits.
  5. Affirmation of Patrick B. Sardino, Esq., in opposition to motion, dated March 20, 2001, and filed March 26, 2001, with attached exhibits.
The procedural history of this case is crucial to the disposition of the present motion. An automobile accident occurred on October 15, 1997, between a tractor trailer owned by Rockton Transport, O/B Rockton Leasing, Ltd. (hereinafter "Rockton") and a truck owned by the State. The Rockton vehicle hit the rear of the State vehicle resulting in damage to both vehicles. This Claim is a subrogation claim for property damages in the amount of $40,064.17. This matter first came before this Court by way of a motion for permission to file a late claim pursuant to Court of Claims Act (hereinafter "CCA") 10 (6) which was granted in due course. (Markel Insurance et al v State of New York, supra). The Court had jurisdiction to review and determine the motion at that time because it had been filed prior to the expiration of the three year deadline from the date the claim accrued.[1] (CCA 10 [6] and CPLR 214). In granting the motion, this Court directed, in pertinent part, the following:
Accordingly, for the reasons stated above, IT IS ORDERED, that Claimant's Motion No. M-62579 for permission to permit the late filing and service of a claim is GRANTED. Claimant shall file a claim and serve a copy of the claim upon the attorney general within sixty (60) days from the date of filing of this Order in the Chief Clerk's Office of this Court. The service and filing of the claim shall be in conformity with all applicable statutes and rules of the Court.

(Markel Insurance et al v State of New York, supra, p 6). The permitted Claim was served on the Office of the Attorney General and filed in the Office of the Clerk on February 6 and 7, 2001, respectively.


The State's dismissal motion is based upon Claimant's purported failure to comply with the terms of said Decision & Order in several respects. First, the State advises that it rejected the permitted Claim as a nullity because it was unverified. Claimant quickly attempted to correct this defect by: (1) filing an attorney's verification on February 13, 2001 in the Office of the Clerk; and (2) serving a Verified Claim on February 12, 2001 upon the Office of the Attorney General by express mail. There is no dispute that the 60 day period cited in this Court's prior Decision and Order expired on February 8, 2001 as calculated from the date of filing in the Office of the Clerk on December 8, 2000. Accordingly, the State contends that both the verification filed in the Office of the Clerk on February 13, 2001 and the Verified Claim served by express mail on February 12, 2001 were untimely. Additionally, the State asserts that service on February 12, 2001, by way of express mail, failed to conform to the provisions of CCA 11 which require service personally or by certified mail, return receipt requested. In sum, the State contends that "[C]laimant's failure to comply with the conditions imposed by the Court in granting Motion No. M-62579 by not properly serving the Claim as required by § 11 of the Court of Claims Act and within 60 days from the date of filing of this order in the Chief Clerk's Office of this Court, requires dismissal of the claim." (Affirmation of James E. Shoemaker, AAG, ¶ 14).


In opposition, Claimant asserts that this Claim does satisfy this Court's prior Order because: (1) CPLR 3020 (a) permits the use of an unverified pleading; (2) that there is no statutory provision requiring verification in this type of claim; and (3) that Attorney Ringwood's signature on the Claim qualified as a verification pursuant to CPLR 3020 (d) (3). The Court notes that the CCA requires a claim to be verified (CCA 10 [6] and 11 [b]) despite the optional provision of CPLR 3020 (a) cited by Claimant. Moreover, the signature of Attorney Ringwood on the Claim does not conform to the requirements of a proper verification.[2]


In this Court's view, the case at bar is distinguishable from the cases cited by the State in which the failure to adhere to CCA 11 has been deemed jurisdictionally fatal in the first instance, since here we are dealing with the Court's own deadline contained in its prior Decision & Order rather than the statutory time periods set forth in the CCA. This Court has previously held that the fact a Claimant has missed a deadline imposed in a 10 (6) Order is not a fatal defect since the original timely 10 (6) motion satisfied the purpose of the statute of limitations. (Oparaji v City University of New York, Ct Cl., April 28, 2000, Lebous, J., Claim No. None, Motion No. M-61212; see also, Holmes v State of New York, Ct Cl., October 28, 1988, Silverman, J., Claim No. 74926, Motion No. M-39257, p 4; Griffin v John Jay Coll., 266 AD2d 16). Consequently, the Court will amend its own prior Order as follows:
Accordingly, for the reasons stated above, IT IS ORDERED, that Claimant's Motion No. M-62579 for permission to permit the late filing and service of a claim is GRANTED. Claimant shall file a Verified Claim and serve a copy of the Verified Claim upon the attorney general on or before June 29, 2001. The service and filing of the claim shall be in conformity with all applicable statutes and rules of the Court.

So there is no misunderstanding, Claimant is to effect filing and service of a properly verified claim on or before June 29, 2001 and service on the Office of the Attorney General should be achieved by service personally or by certified mail, return receipt requested.


Accordingly, for the reasons stated above, it is ORDERED that the State's motion to dismiss, Motion No. M-63226, is GRANTED and Claim No. 103783 is hereby DISMISSED, and that Motion No. M-62579 is amended, sua sponte, in accordance with the foregoing.


April 11, 2001
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims




[1]The 10 (6) motion was filed on October 12, 2000, which was 3 days before the underlying limitations period expired on October 15, 2000.
[2]CPLR 3021 sets forth the form of the affidavit (or affirmation in the case of an attorney) of verification which was not satisfied by Mr. Ringwood's bare signature.