New York State Court of Claims

New York State Court of Claims

MORAN v. THE STATE OF NEW YORK, #2002-028-015, Claim No. 104648, Motion No. M-64609


Synopsis


Claimant failed to timely and properly serve a Notice of Intention to File Claim in 1999. As such, Claimant was not entitled to the benefit of §10(3) rendering the Claim filed in 2001 untimely. Claim dismissed.

Case Information

UID:
2002-028-015
Claimant(s):
KRISTIE L. MORAN
Claimant short name:
MORAN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104648
Motion number(s):
M-64609
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
VITANZA, SHABUS & FERTIG, LLPBY: Diane M. DiStefano, Esq.
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Kathleen M. Resnick, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 21, 2002
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on Defendant's motion to dismiss the Claim pursuant to CPLR


3211(a)(2) and (8):

1) Notice of Motion and Supporting Affirmation of Assistant Attorney General
Kathleen M. Resnick., filed January 23, 2002, (Resnick Affirmation), with annexed Exhibits A-D.
2) Affidavit in Opposition of Diane M. DiStefano, Esq., filed February 8, 2002, (DiStefano Opposition).

3) Reply Affirmation of Assistant Attorney General Kathleen M. Resnick., filed February 15, 2002, (Resnick Reply).
Filed Papers: Claim, filed July 27, 2001 ; Answer, filed September 5, 2001.

Defendant has moved for dismissal of the claim pursuant to CPLR 3211(a)(2) and (8) alleging that the Claimant has failed to comply with Court of Claims Act §§ 10(3) and 11(a). Defendant maintains the Claimant did not timely serve either a claim or notice of intention to file a claim within ninety days after the claim accrued (Resnick Affirmation, ¶ 7) and that service of the notice of intention to file a claim was served by regular first class mail (Resnick Affirmation, ¶8). Claimant opposes the motion arguing that its service was timely (DiStefano Opposition, ¶ 4), that service by mail did not prejudice the Defendant (DiStefano Opposition, ¶ 5) and by seeking permission on a cross motion to file a late notice of claim "nunc pro tunc" (DiStefano Opposition, ¶¶2 and 6). In response, Defendant asserts Claimant's request to file a late notice of claim is not in proper form and does not address the requirements of the Court of Claims Act for filing a late claim (Resnick Reply, ¶ 3).

The Claim asserts that Claimant was injured when she lost her job on August 1, 1999 with a child care agency because she was the subject of an "indicated" report maintained by the New York State Central Register (see generally, Social Services Law Title 6). Claimant alleges that the "indicated" report was not expunged due to the negligence of Defendant in failing to timely conduct a hearing on the report. On September 9, 1999 a decision was issued which found the charges upon which the indicated report was based to be unfounded.

Court of Claims Act § 10 (3) requires that claimant file and serve a claim within 90 days from the date of accrual or a claimant may opt to serve a notice of intention to file a claim within 90 days from the date of accrual, thereby extending the time within which the claim must be filed. Section 11 (a) of the Court of Claims Act requires that the Attorney General be served either personally or by certified mail, return receipt requested, within this 90 day period. In this case, Claimant served a notice of intention to file a claim[1] by regular, first class mail which the Attorney General received on December 13, 1999 (see, Resnick Affirmation Exhibit A attached to the motion). On July 27, 2001, the Claim was served upon the Attorney General by certified mail return receipt requested (see, Resnick Affirmation, Exhibit C), and filed with Court.

Before addressing the merits of Defendant's motion, the Court pauses to address the relief sought by Claimant. Notwithstanding the use of the language "cross-motion" in the body of the affidavit, (DiStefano Opposition, ¶2) there is no properly noticed cross-motion before the Court (see, CPLR 2215; Matter of Briger's Estate, 95 AD2D 887, 888; Siegel, New York Practice, § 249 at 403, [3rd Ed]; see also, Rules of the Court of Claims §206.8 and § 206.9 [requirements in bringing a motion on before the Court of Claims] ). Accordingly, Claimant does not have pending before this Court an application for affirmative relief. Even if the Court were inclined at this juncture to consider late-filing relief, it is clear to the Court the application has not been made in consultation with Court of Claims Act § 10(6) as Claimant's papers address only the issue of prejudice.[2]

It is well established that failure to timely serve the Attorney General in strict compliance with Court of Claims Act § 10 (3) gives rise to a jurisdictional defect (see, Finnerty v New York State Thruway Auth., 75 NY2d 721, 723; Dreger v New York State Thruway Auth., 177 AD2d 762, 763, affd 81 NY2d 721; Suarez v State of New York, 193 AD2d 1037, 1038). As an initial inquiry, the Court finds that the State adequately pleaded the service and timeliness defenses with sufficient particularity in its Answer (Resnick Affirmation Exhibit D [third and fourth affirmative defenses]) to meet the requirement of Court of Claims Act § 11(c) (see, Sinacore v State of New York, 176 Misc 2d 1, 9).

While the parties dispute the accrual date of this Claim, that dispute is of no moment in resolving whether the Notice of Intention to File a Claim was timely served. Assuming arguendo the Claim arose on September 9, 1999 as Claimant suggests, and not August 1, 1999, proper service of either a claim or notice of intention to file a claim was to be made within 90 days or by December 8, 1999. As such, Claimant's service on December 13, 1999, the date the Attorney General received the document (see, Court of Claims Act § 11[a]), was untimely. Similarly, the methods of service prescribed by section 11 of the Court of Claims Act must also be strictly followed. A claimant's failure to serve a notice of intention to file a claim in the manner prescribed by section 11 precludes a claimant from the benefit of the additional time granted by section 10 (3) for the filing of the claim itself (see, Philippe v State of New York, 248 AD2d 827). Here, there is no dispute, and the Court so finds, that the Notice of Intention to File a Claim (see, Resnick Affirmation, Exhibit A) was improperly served by regular, first class mail. Taken together, Claimant's failure to effect timely service of the notice of intention to file a claim upon the Attorney General by personal service or by certified mail, return receipt requested renders that document a nullity. Accordingly, the subsequent filing and service of the claim itself is untimely and requires dismissal of the claim (Bogel v State of New York, 175 AD2d 493; see also, Hodge v State of New York, 213 AD2d 766).

For the foregoing reasons, the Defendant's motion to dismiss is GRANTED and

Claim No. 104648 shall be and hereby is dismissed.[3]





March 21, 2002
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims




[1] Although captioned a "Notice of Claim," by letter dated January 5, 2000, Claimant's counsel advised the Defendant to treat this document as a notice of intention to file a claim and confirmed that a "formal summons and complaint" [sic] would be served (Resnick Affirmation, Exhibit B).
[2] Absent a proper application, the failure to comply with the jurisdictional requirements of the Court of Claims Act are generally not subject to correction by amendment or a nunc pro tunc order (see, Byrne v State of New York, 104 AD2d 782; Martin v State of New York, 185 Misc 2d 799; White v State of New York, 161 Misc 2d 938, 943).
[3] The parties request to modify the Court's scheduling order, made while the instant motion was sub judice, is moot.