New York State Court of Claims

New York State Court of Claims

GOLDBAUM v. LEONARD SPANO, as Clerk of the Supreme Court, Westchester County and THE STATE OF NEW YORK, #2002-010-039, Claim No. NONE, Motion No. M-64939


Synopsis



Case Information

UID:
2002-010-039
Claimant(s):
DAVID GOLDBAUM
Claimant short name:
GOLDBAUM
Footnote (claimant name) :

Defendant(s):
LEONARD SPANO, as Clerk of the Supreme Court, Westchester County and THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-64939
Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant's attorney:
PETER LANE, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: Vincent Cascio, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
July 1, 2002
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1-6 were read and considered by the Court on claimant's late claim application:
Notice of Motion, Attorney's Supporting Affidavit and Exhibits............................1

Defendant's Affirmation in Opposition....................................................................2

Attorney's Reply Affidavit, Exhibit and Memorandum of Law...............................3

Defendant's Sur-Reply..............................................................................................4

Attorney's Affirmation and Exhibit..........................................................................5

Supreme Court Decision and Order..........................................................................6

Claimant, a judgment creditor, seeks leave to serve and file a late claim alleging that on November 14, 1997, the Westchester County Clerk, Leonard Spano, failed to enter/docket in New York State Supreme Court, an affidavit in support of judgment and a certified copy of a Massachusetts judgment against William Weiss (hereinafter the judgment), a judgment debtor who owned property within the county (Ex. A to Motion Papers). The property was conveyed to a bona fide purchaser free and clear of claimant's encumbrance by deed dated November 19, 1998. Claimant learned of this occurrence on March 20, 2001 and, on April 26, 2001, claimant commenced an action in Supreme Court against the County Clerk (Ex. B to Motion Papers). By answer dated February 22, 2002, it was asserted that the clerk was acting in his capacity as a State and not a county employee. Accordingly, in March 2002, claimant brought his late claim application in the Court of Claims.

Court of Claims Act § 10(6) provides in pertinent part, "[a] claimant who fails to file a claim ***, as provided in the foregoing subdivisions, within the time limited therein for filing the claim ***, may, nevertheless, in the discretion of the court, be permitted to file such claim at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules." The requirements of Court of Claims Act § 10 are jurisdictional in nature (see Finnerty v New York State Thruway Auth., 75 NY2d 721; Mallory v State of New York, 196 AD2d 925). "The failure to file such application within the proscribed time period ‘creates a jurisdictional defect and the court is without discretionary power to grant nunc pro tunc relief' (Byrne v State of New York, 104 AD2d 782,783)" (Bergman v State of New York, 281 AD2d 731, 734).

Assuming that the County Clerk was acting as a State officer[1] when he accepted the judgment for filing (see National Westminster Bank v State of New York, 76 NY2d 507, 508 [County Clerk acted as State officer when he "negligently" failed to record judgment against property of judgment debtor and property was then sold free of judgment]), the claim, which properly sounds in negligence,[2] has a three year statute of limitations (CPLR 214). The claim accrued on November 19, 1998, when the property was conveyed to a bona fide purchaser free and clear of claimant's encumbrance because that is when damages were reasonably ascertainable (see Flushing Natl. Bank v State of New York, 156 Misc 2d 979, affd 210 AD2d 294, concurring opinion 295-96 [County Clerk, acting as a State officer, failed to properly record a judgment against the real property of a judgment debtor; claim accrued upon transfer of property to a bona fide purchase, not the date of discovery]).[3] Claimant's late claim application was filed after the three year statute of limitations had lapsed.

Accordingly, this Court is without discretionary power to consider claimant's application (see Miller v State of New York, 283 AD2d 830 [expiration of statute of limitations precluded court from granting late claim application]; Bergman v State of New York, 281 AD2d 731, supra).

MOTION DENIED.


July 1, 2002
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims




[1] By Decision and Order of the Supreme Court (Goldbaum v County of Westchester and Leonard Spano in his capacity as the Westchester County Clerk, June 14, 2002. Colabella, J., Index No. 20126/01), the complaint was dismissed for lack of subject matter jurisdiction based upon the Supreme Court's finding that the filing of a foreign judgment is no different than the filing of a New York judgment, citing CPLR 5402(b) and National Westminster Bank v State of New York, 76NY2d 507, 509. Claimant and defendant each submitted numerous papers on this motion; however neither cited this leading Court of Appeals case regarding the characterization of a County Clerk's acts.
[2] Claimant's belated attempt to characterize the claim as one for breach of contract is unpersuasive. When accepting a judgment for filing, the clerk is performing a statutory duty and not entering into a contract, either express or implied, in law of in fact and claimant failed to cite any supporting case law to the contrary.
[3] Notably, claimant's purported date of discovery is March 20, 2001 and, at that time, claimant was within the statute of limitations for filing a late claim application in this Court.