New York State Court of Claims

New York State Court of Claims

DOWDELL v. THE STATE OF NEW YORK, #2003-015-364, Claim No. 107658, Motion Nos. M-66907, CM-67259


Synopsis


Court dismissed claim for lack of jurisdiction for untimely service but granted claimant's cross-motion for leave to treat notice of intention as claim. Late claim motion denied as academic.

Case Information

UID:
2003-015-364
Claimant(s):
JOHN DOWDELL
Claimant short name:
DOWDELL
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107658
Motion number(s):
M-66907
Cross-motion number(s):
CM-67259
Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
DeLorenzo Law Firm, LLPBy: Paul E. DeLorenzo, Esquire
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Glenn C. King, Esquire Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 27, 2003
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Defendant's motion to dismiss the claim for lack of jurisdiction pursuant to CPLR 3211 (a) (2) and (8) is granted. Claimant's cross-motion for leave to treat the previously served notice of intention as a claim is granted. Claimant's application for late claim relief is denied as academic. The claim seeks to recover damages for personal injuries sustained on March 13, 2001 when, it is alleged, claimant was caused to slip and fall on a sidewalk adjacent to Route 23A in the Village of Hunter, Greene County sustaining 6 broken ribs and contusions to his head and body. A verified notice of intention to file a claim was personally served upon the Attorney General's office on June 11, 2001. Pursuant to Court of Claims Act § 10(3) service of the notice of intention extended claimant's time to serve and file a claim until March 13, 2003. The instant claim was served on April 24, 2003, more than 2 years following accrual, and must therefore be dismissed as untimely since unless waived the time limitations of the Court of Claims are jurisdictional in nature and must be strictly construed (Lurie v State of New York, 73 AD2d 1006, affd 52 NY2d 849).

Accordingly, the claim is dismissed for lack of jurisdiction.

In a rather confused cross-motion claimant's attorneys seek either late claim relief pursuant to Court of Claims Act § 10 (6) or permission to treat the claimant's notice of intention as a claim pursuant to Court of Claims Act § 10 (8) (a).

Both sections 10 (8) and 10 (6) provide that relief pursuant thereto must be denied if the applicable Statute of Limitations for a like action against a citizen of the State has expired pursuant to article two of the CPLR. Here the applicable period for commencement of a personal injury action founded upon negligence is three years (CPLR 214 [5]) measured from the March 13, 2001 date of accrual. The cross-motion filed on August 19, 2003 is therefore timely.
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."
Here , the notice of intention was personally served upon the Attorney General on the 90th day following the claim's accrual and was thus timely. The notice of intention clearly stated the time when and place where the claim arose, the nature of the claim and the injuries alleged to have been sustained (Court of Claims Act § 11 [b]). The facts contained therein were clearly sufficient to apprise the defendant of the legal basis of the claim and afforded the State a reasonable opportunity to investigate the underlying allegations of negligence. The notice of intention merely lacked an addendum clause which may be addressed in an amended claim (see, Barski v State of New York, 43 AD2d 767; Muller v State of New York, 184 Misc 2d 500, 502). The State in opposing the cross-motion has neither alleged nor demonstrated that prejudice would result should the application for relief under Court of Claims Act § 10 (8) be granted.

Claimant's motion for leave to treat as a claim the notice of intention served upon the Attorney General on June 11, 2001 is granted and, accordingly, that part of the motion seeking late claim relief is denied as academic.

The movant is directed to file a copy of the previously served verified notice of intention with the Clerk of the Court within twenty days of the filing of this decision and order. The Clerk shall assign an appropriate claim number upon movant's compliance with Court of Claims Act § 11-a. Within 40 days following the date this decision and order is filed with the Clerk of the Court claimant shall amend his claim to set forth a demand for monetary relief and shall thereafter file and serve said amended claim. Defendant shall within 40 days after service of the amended claim file and serve its answer to the amended claim in accordance with the Uniform Rules for the Court of Claims 22 NYCRR 206.7 (b).


October 27, 2003
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 May 30, 2003;
  2. Affirmation of Glenn C. King dated May 30, 2003 with exhibits;
  3. Notice of cross-motion dated August 12, 2003;
  4. Affirmation of Paul E. DeLorenzo dated August 12, 2003 with exhibits;
  5. Affirmation of Paul E. DeLorenzo dated August 13, 2003 with exhibits;
  6. Affirmation of Glenn C. King dated September 10, 2003;
  7. Affidavit of Robert L. Winans, Jr., sworn to September 8, 2003;
  8. Corrected notice of motion dated May 30, 2003 [sic], filed October 17, 2003;