New York State Court of Claims

New York State Court of Claims

SYLVESTER v. NEW YORK STATE THRUWAY AUTHORITY, #2003-018-217, Claim No. 107143, Motion No. M-66416


Claimant's motion for relief pursuant to Court of Claims Act § 10(8)(a) is granted.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
By: ROGER B. WILLIAMS, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
May 8, 2003

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant brings a motion seeking an order striking defendant's seventh affirmative defense; or in the alternative, granting claimant permission to treat her notice of intention as the claim or permission to file a late claim. Defendant opposes the motion.

This case has a bit of history which is relevant to the determination of this motion. Claimant was injured in an automobile accident on July 21, 2000. On August 22, 2000, claimant properly served the attorney general and the New York State Thruway Authority with a notice of intention which provided a very detailed description of the accident and the location. On July 5, 2002, claimant properly served a claim upon the attorney general and the New York State Thruway Authority. That claim, however, failed to provide the location of the accident. Defendant brought a motion to dismiss which was granted. Claimant then filed and served a new claim upon the attorney general and the New York State Thruway Authority on January 2, 2003, relying on CPLR 205. Defendant, in its answer, raises with particularity as its "SEVENTH AFFIRMATIVE DEFENSE" the untimeliness of the claim pursuant to Court of Claims Act § 10. Claimant now seeks to strike that defense; or in the alternative, to have the notice of intention served on August 22, 2000 treated as the claim or permission to file a late claim.

Motion to Strike Defendant's Seventh Affirmative Defense
Claimant argues that defendant's seventh affirmative defense should be stricken. The defense states:
"11. That the Claim is untimely by reason of being served and/or filed in excess of two (2) years from the date the cause of action, if any, of the Claimant may have accrued to her.
12. That the Claim was filed with the Clerk of the Court of Claims in excess of the period permitted by Court of Claims Act §10.
13. By reason thereof, this Court lacks subject-matter jurisdiction to hear and/or determine this Claim."

Claimant argues that CPLR 205 permits the recommencement of an action which was timely commenced but terminated unless the prior action was terminated by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal for neglect to prosecute the action, or a final judgment on the merits. The new action must be brought within six months of the termination of the first action and it must be timely commenced if it had been brought at the time of the prior action, and service upon the defendant must be accomplished within that six-month period. Claimant argues that since the prior action was timely commenced and no other exception applies, defendant's seventh affirmative defense should be stricken.

It is well established that the conditions for commencing an action in this Court as set forth in Court of Claims Act §§ 10 and 11 are not "statutes of limitations" but conditions precedent to suit for which the ameliorative assistance of CPLR 205 is unavailable (
Yonkers Contracting Co., Inc. v Port Authority Trans-Hudson, Corp., 93 NY2d 375).
Claimant's motion seeking to strike the defendant's seventh affirmative defense is DENIED.
Treat Notice of Intention as the Claim
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."

Claimant has met all of the criteria for the Court to allow the notice of intention to be treated as the claim. Defendant concedes this as well.

Accordingly, claimant's motion for relief pursuant to Court of Claims Act § 10(8)(a) is GRANTED. Claimant's 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 and the New York State Thruway Authority on August 22, 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 claimant's motion papers, Exhibit 2, and designate it as a claim. The claim shall be given the appropriate number as if it had been filed on August 22, 2000. Within 40 days from the date this decision and order is filed with the Clerk of the Court, claimant should amend her claim to set forth a demand for relief and file and serve the amended claim. Defendant shall have 40 days thereafter to serve its answer to the amended claim, in accordance with the Uniform Rules for the Court of Claims [22 NYCRR] §206.7 (b), and the Clerk of the Court is directed to close claim number 107143.

May 8, 2003
Syracuse, New York

Judge of the Court of Claims

The Court considered the following documents in deciding this motion:

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

Affirmation of James B. Fleckenstein, Esquire, in support, with

exhibits attached thereto....................................................................2

Affidavit of Sharon A. Sylvester, in support with exhibit attached thereto...3

Affirmation of Carri Jones, M.D., in support.................................................4

Affirmation of Daniel P. Cannucciari, M.D., in support................................5

Affirmation of Roger B. Williams, Esquire, Assistant Attorney

General, in opposition.........................................................................6