New York State Court of Claims

New York State Court of Claims

PEGASUS v. THE STATE OF NEW YORK , #2002-015-255, Claim No. 105412, Motion No. M-64718


Synopsis


State's motion to dismiss contract claim for lack of jurisdiction stemming from lack of service by prescribed method denied. Claimant served Attorney General by certified mail, return receipt requested within six months of accrual of claim but subsequent to the making of the State's dismissal motion. Under these circumstances jurisdictional prerequisite to claim has been satisfied.

Case Information

UID:
2002-015-255
Claimant(s):
PEGASUS CLEANING CORPORATION
Claimant short name:
PEGASUS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105412
Motion number(s):
M-64718
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
K. Michael Sawicki, EsquireZdarsky, Sawicki & Agostinelli
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Cornelia Mogor, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 21, 2002
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The State's motion to dismiss the claim filed on December 31, 2001 on the ground that the Court lacks jurisdiction due to claimant's failure to timely serve the claim upon the Attorney General as mandated by Court of Claims Act § 11 (a) (i) is denied. The claim seeks to recover $40,770.91 in damages for the breach of three separate contracts for cleaning services allegedly provided by the claimant at the State University of New York at Buffalo (SUNY Buffalo) during the month of August 2001. The claim alleges that the janitorial services were provided pursuant to the terms of the contracts, that invoices in the proper amounts were submitted for payment and the State has failed and refused to pay the monies due.

The State moved by notice of motion dated February 12, 2002 to dismiss the claim on the ground that claimant failed to serve a copy of the claim upon the Attorney General as set forth in Court of Claims Act § 11 (a) (i). In response to the State's motion claimant's attorney submitted an affidavit in which he alleges that "a copy of the claim was served upon the Attorney General by certified mail, return receipt requested on February 15, 2002." An affidavit of service sworn to on February 15, 2002 and attesting to service of the claim by certified mail, return receipt requested, is attached as Exhibit A. Claimant's counsel asserts that service of the claim renders the defendant's motion moot.

Court of Claims Act § 11 (a) (i) in relevant part provides:
a. (i) The claim shall be filed with the clerk of the court; and, except in the case of a claim for the appropriation by the state of lands, a copy shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for filing with the clerk of the court.
"It is established law that the 'requirements of *** section 11 of the Court of Claims Act are jurisdictional in nature and, therefore, must be strictly construed [citations omitted]" (Finnerty v New York State Thruway Auth., 75 NY2d 721, 722). An action is not properly commenced and jurisdiction does not attach until a claim is filed with the Court and served upon the Attorney General either personally or by certified mail, return receipt requested "within the applicable limitations period" (Dreger v New York State Thruway Auth., 81 NY2d 721, 724; see also Court of Claims Act § 11 (a) (i)).

The instant claim is grounded upon breach of contract and is, therefore, subject to the time limitations for such a cause of action set forth in Court of Claims Act § 10 (4). That section provides that filing and service of a claim upon the Attorney General shall occur within six months of accrual. Despite the lack of a specific accrual date the instant claim seeks damages arising from the State's failure to pay invoices submitted for work performed at SUNY Buffalo in August 2001. It thus appears to this Court that pursuant to Court of Claims Act § 10 (4) claimant could and did timely file his claim with the Court on December 31, 2001. Claimant's service of the claim upon the Attorney General by certified mail, return receipt requested, on February 15, 2002, though effected subsequent to this motion, occurred within six months of the claim's August 2001 accrual and was therefore timely pursuant to Court of Claims Act § 10 (4).

Accordingly, the defendant's motion to dismiss the claim is denied.


May 21, 2002
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated February 12, 2002;
  2. Affirmation of Cornelia Mogor dated February 12, 2002 with exhibits;
  3. Affidavit of K. Michael Sawicki sworn to February 20, 2002.