New York State Court of Claims

New York State Court of Claims

MARTIN v. STATE OF NEW YORK, #2002-018-180, Claim No. 106015, Motion Nos. M-65427, CM-65525


Synopsis


Defendant's pre-answer motion is granted and the claim is dismissed; however, claimants' cross-motion is granted which gives permission to treat claimants' notice of intention as a claim.

Case Information

UID:
2002-018-180
Claimant(s):
NEAL MARTIN and TINA MARTIN
Claimant short name:
MARTIN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106015
Motion number(s):
M-65427
Cross-motion number(s):
CM-65525
Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
CONBOY, McKAY, BACHMAN & KENDALL, LLPBy: Scott B. Goldie, Esquire
Defendant's attorney:
ELIOT SPITZER, ATTORNEY GENERAL
By: G. Lawrence Dillon, Esquire Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 8, 2002
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant brings a motion to dismiss the claim for failure of timely service. Claimants bring a cross-motion for permission to file a late claim pursuant to Court of Claims Act §10(6), or in the alternative, for permission to treat the notice of intention as a claim pursuant to Court of Claims Act §10(8)(a). The claim seeks damages as a result of the alleged negligent design, construction, and maintenance of US Route 11 and adjoining culverts in the Town of Potsdam, County of St. Lawrence. It is alleged that as a result of the State's negligence, a disruption in the natural flow of water and drainage resulted causing flooding of claimants' real and personal property. The date of accrual was May 10, 2000.

By all accounts, claimants served a timely notice of intention upon an Assistant Attorney General by personal service on June 30, 2000. Claimants then timely filed a claim with the Clerk of the Court of Claims in Albany on May 3, 2002. However, no claim was served until May 16, 2002.

Defendant argues that the Court of Claims Act §§10 and 11 require service and filing of a claim within two years of the date of accrual in order for a claim to be timely commenced after service of a notice of intention. Court of Claims Act §10(3) requires that a claim for injuries to property caused by the negligence of the State shall be "filed and served upon the attorney general within ninety days after the accrual of the claim, unless claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after the accrual of the claim." The requirements of Court of Claims Act §10 are jurisdictional in nature and must be strictly construed (Byrne v State of New York, 104 AD2d 782, app denied 64 NY2d 607 ). By timely serving the attorney general with a notice of intention, claimants had two years from May 10, 2000 to file and serve a claim. The failure to timely serve the claim by May 10, 2002, is a fatal jurisdictional defect (Dreger v New York State Thruway Authority, 81 NY2d 721).

Defendant's motion must be granted and the claim dismissed.

Claimants, in anticipation of this result, seek relief under Court of Claims Act §10(6), permission to file a late claim or §10(8)(a), permission to treat the notice of intention as a claim.

Defendant's Affirmation in Opposition addresses only claimants' request for relief under §10(6).

Claimants' request for permission to treat the notice of intention as a claim is granted. Court of Claims Act §10(8)(a) provides:

" [a] claimant who timely serves a notice of intention but who fails to timely serve or file a claim may, nevertheless, apply to the court for permission to treat the notice of intention as a claim. The court shall not grant such application unless: it is made upon motion 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 notice of intention was timely served, and contains facts sufficient to constitute a claim; and the granting of the application would not prejudice the defendant."


Claimants' application is timely made (CPLR 214[4]). The notice of intention was, defendant admits, timely served and, being identical to the claim, set forth sufficient facts to constitute a claim. The notice of intention was served within 90 days of the date of accrual and adequately apprised defendant of the allegations surrounding the claim, therefore, there is no prejudice to the defendant.

Accordingly, defendant's motion is GRANTED and the claim is dismissed. Claimants' cross-motion for permission to treat the notice of intention as a claim is GRANTED. Claimants' request for relief under Court of Claims Act §10(6) is hereby DENIED as moot. The notice of intention which was served upon the State on June 30, 2000 shall serve as the claim in this action. The Chief Clerk is directed to make a copy of the notice of intention, which is contained in claimants' motion papers and designate it as a claim. The claim shall be given the appropriate number as if it had been filed on June 30, 2000. The State shall have 40 days from the date this decision and order is filed with the Clerk of the Court to serve its answer.

November 8, 2002
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court has considered the following documents in deciding this motion:

Notice of Motion....................................................................................1

Affirmation of G. Lawrence Dillon, Esquire, Assistant

Attorney General, in support, with exhibits attached thereto........2


Notice of Cross Motion...........................................................................3


Affidavit of Scott B. Goldie, Esquire, in support of cross-motion

with exhibits attached thereto.......................................................4


Affirmation of G. Lawrence Dillon, Esquire, Assistant

Attorney General, in opposition....................................................5