New York State Court of Claims

New York State Court of Claims

DALY v. STATE OF NEW YORK, STATE UNIVERSITY OF NEW YORK AND WILLIAM V. DANDREA, #2003-010-033, Claim No. 107455, Motion Nos. M-67189, CM-67289


Synopsis


Defendants' motion to dismiss is granted and claimants' cross-motion for leave to serve and file a late claim is granted.

Case Information

UID:
2003-010-033
Claimant(s):
PATRICK JOSEPH DALY AND SUSAN DALY
Claimant short name:
DALY
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK, STATE UNIVERSITY OF NEW YORK AND WILLIAM V. DANDREA
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107455
Motion number(s):
M-67189
Cross-motion number(s):
CM-67289
Judge:
Terry Jane Ruderman
Claimant's attorney:
KUCZINSKI, VILA & ASSOCIATESBy: Gregory Kuczinski, Esq.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New York
By: Thomas M. Bona, Esq.Of Counsel
Third-party defendant's attorney:

Signature date:
November 6, 2003
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1-4 were read and considered by the Court on defendants' motion to dismiss and claimants' cross-motion for leave to serve and file a late claim:
Notice of Motion, Attorney's Supporting Affidavit and Exhibits............................1

Notice of Cross-Motion, Attorney's Supporting Affirmation and Exhibits.............2

Attorney's Affirmation in Partial Opposition to Defendant's Motion.....................3

Attorney's Reply Affidavit and in Opposition.........................................................4
Defendants' Motion to Dismiss
Defendants move to dismiss Claim No. 107455 on the ground that the Court lacks jurisdiction over the claim because, while the claim was timely served, it was not timely filed. The following is undisputed (Affirmation in Support of Cross-Motion, ¶¶ 5, 7): the accrual date is December 3, 2002; the claim was served on February 28, 2003 (Defendant's Ex. A); the claim was filed on March 12, 2003, nine days beyond the 90 day time period(Defendant's Ex. B). Defendants also move to dismiss on the ground that the Court lacks subject matter jurisdiction over defendant William V. Dandrea.

The time periods for service and filing set forth in Court of Claims Act §§ 10 and 11 are jurisdictional in nature and require strict compliance (see Finnerty v New York State Thruway Auth., 75 NY2d 721; Matter of Welch v State of New York, 71 AD2d 494). Accordingly, the claim warrants dismissal pursuant to CPLR 3211(a)(2) and (a)(8) (see Adkison v State of New York, 226 AD2d 409; Hodge v State of New York, 213 AD2d 766). Additionally, this Court does not have subject matter jurisdiction over William V. Dandrea, as an individual (see Morell v Balasubramanian, 70 NY2d 297).

Accordingly, defendants' motion to dismiss Claim No. 107455 is hereby GRANTED.
Claimants' Cross-Motion for Leave to Serve and File a Late Claim
Claimants cross-move for leave to serve and file a late claim against State of New York, State University of New York, Purchase College (Claimants' Ex. 5). Preliminarily, State University of New York, Purchase College, is not a proper party defendant and that branch of the cross-motion is hereby DENIED.

Court of Claims Act §10(6) requires that the Court consider, among other relevant factors: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears to be meritorious; (5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and (6) whether the claimant has another available remedy. The presence or absence of any one factor is not determinative and the list of factors is not exhaustive (see, Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979).

Claimants' purported excuse for the failure to timely file the claim is not valid; however, the presence or absence of any one factor is not determinative (id.) Most significantly, claimants have shown the claim's appearance of merit (see Nyberg v State of New York, 154 Misc 2d 199; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). Also, the Court finds that defendant has failed to demonstrate any significant prejudice sufficient to warrant denying claimants' cross-motion. Claim No. 107455 was timely served, but was dismissed because it was filed nine days after the 90 day time period. Nonetheless, the timely service of the claim afforded defendant notice of the essential facts constituting the claim and an opportunity to conduct an investigation of the underlying circumstances.

Upon consideration of all the relevant factors, the Court GRANTS that branch of claimants' cross-motion which seeks leave to file and serve a late claim against the State of New York in compliance with the provisions of the Court of Claims Act within 30 days of the filing date of this Decision and Order. The claim shall not make any allegations against William V. Dandrea individually nor shall it name State University of New York or Purchase College, as a defendant.

It is noted that the Court's conclusion with regard to the appearance of merit is limited to this Decision and Order; a greater burden of proof rests upon claimant to prevail at trial.


November 6, 2003
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims