Filed Papers: Claim, Answer, Amended Answer
Claim No. 100442, filed May 27, 1999, alleges that on October 23, 1997
claimant was a passenger in a motor vehicle that was struck by a vehicle owned,
operated, maintained and controlled by the New York State Thruway Authority
("NYSTA)" and the State of New York. Defendants' amended answer, filed August
17, 1999, asserted lack of jurisdiction over NYSTA based upon a failure to serve
as required by Court of Claims Act §§ 10, 11 and Public Authorities
Law §§ 352, 354, 361-b (Amended Answer, ¶ 12). The amended
answer also asserted that the State neither owns, operates nor maintains the
motor vehicle alleged to have been involved in the accident (Amended Answer
¶ 13). Claimant did not reject the amended answer.
To the extent that defendants seek dismissal, claimant does not dispute that
she failed to obtain jurisdiction over NYSTA because it was not served. Rather,
claimant argues that jurisdiction was obtained by this Court's Preliminary
Conference Order signed by Judge Ruderman on August 2, 1999 which stated,
"JURISDICTION is established pursuant to Sections 10 & 11, Court of Claims
Act" (Claimant's Ex. A).
This very issue was addressed by Judge Mignano in Goudie v State of New
(Claim No. 97194, filed May 15,
In a well reasoned decision, Judge
Mignano held that the phrase in issue was merely a topic heading, similar to the
other topic headings within the order, rather than a decretal finding by the
Court. Notably, beneath the phrase there are a number of blank spaces for
information relating to jurisdiction. This is similar in format to the other
headings and the blanks which follow them. Surely, if jurisdiction were
established by the phrase, as argued by claimant, then the blank spaces would be
surplusage (Goudie v State of New York
, pp. 5-6). This Court adopts
Judge Mignano's reasoning and rejects claimant's argument. This Court also
rejects claimant's argument that defendants should be estopped from moving to
dismiss at this date because, had defendants done so earlier, claimant could
have moved to file a late claim. Defendants' motion is not untimely nor in
violation of the CPLR; thus, as was held in Goudie v State of New York
at p. 7, there is no basis for a finding of estoppel against the State.
Additionally, it is noted that claimant could have moved to strike the amended
answer and could have made a late claim application in 1999, when it received
defendants' amended answer.
Accordingly, that branch of defendants' motion which seeks dismissal against
the NYSTA on the basis of lack of jurisdiction is GRANTED (CPLR 3211 [a],
Claimant offers no opposition to that branch of defendants' motion which seeks
summary judgment dismissing the claim against the State on the ground that it
neither owns, operates nor maintains the motor vehicle alleged to have been
involved in the accident with the car in which claimant was a passenger.
Accordingly, that branch of defendants' motion which seeks summary judgment
dismissing the claim against the State of New York is GRANTED.
LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 100442.