New York State Court of Claims

New York State Court of Claims

FRANCO v. NEW YORK STATE THRUWAY AUTHORITY AND THE STATE OF NEW YORK, #2002-010-001, Claim No. 100442, Motion No. M-64213


Synopsis


Defendants' motion for summary judgment is granted.

Case Information

UID:
2002-010-001
Claimant(s):
NEREIDA FRANCO
Claimant short name:
FRANCO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100442
Motion number(s):
M-64213
Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant's attorney:
GREENWALD & GREENWALDBy: Wendy Lee Greenwald, Esq.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: John Healey, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
January 30, 2002
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1-3 were read and considered by the Court on defendants' motion for summary judgment dismissing the claim against it:
Notice of Motion, Supporting Affirmation and Exhibits.........................................1

Affirmation in Opposition and Exhibit....................................................................2

Reply Affirmation....................................................................................................3

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 York (Claim No. 97194, filed May 15, 2001).[1] 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][2], [8]).

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.

January 30, 2002
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims




[1]
This Decision may be found in the Court of Claims web site www.nyscourtofclaims.state.ny.us.