New York State Court of Claims

New York State Court of Claims

GRECO v. THE STATE OF NEW YORK, #2003-028-598, Claim No. 107830, Motion Nos. M-67113, CM-67179


Synopsis


Case Information

UID:
2003-028-598
Claimant(s):
NANCY D. and MICHAEL GRECO
Claimant short name:
GRECO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107830
Motion number(s):
M-67113
Cross-motion number(s):
CM-67179
Judge:
RICHARD E. SISE
Claimant's attorney:
BRINDISI, MURAD & BRINDISI-PEARLMAN, LLPBY: Stephanie A. Palmer, Esq.
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Joel L. MarmelsteinAssistant Attorney General
Third-party defendant's attorney:

Signature date:
December 30, 2003
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 and Claimants' cross-motion pursuant to Court of Claims Act §10(8) for permission to treat a notice of intention as a claim:

1) Notice of Motion and Supporting Affirmation of Assistant Attorney General Joel L. Marmelstein (Marmelstein Affirmation) with annexed Exhibits A-B

filed July 16, 2003

2) Notice of Cross-motion with Supporting Affidavit of Nancy D. Greco and Michael Greco (Grecos' Affidavit) with annexed Exhibits A-B filed July 30, 2003


3) Claimants' Memorandum of Law received July 30, 2003;

4) Affirmation in Response of Assistant Attorney General Joel L. Marmelstein (Marmelstein Response) filed August 19, 2003.


Filed Papers: Verified Claim filed June 5, 2003.

Defendant has timely moved by pre-answer motion to dismiss the Claim asserting that the Court lacks jurisdiction as same was untimely served upon the Attorney General (Marmelstein Affirmation ¶ 6). Claimants cross-move for permission to treat their Notice of Intention as a Claim pursuant to Court of Claims Act §10(8). Defendant does not oppose the cross-motion (Marmelstein Response ¶ 3).

The Court finds the following facts with regard to the service of the Claim. The Claim accrued on June 7, 2001 when Claimants were involved in a motor vehicle accident on State Route 28 in Herkimer County. On August 31, 2001, Claimants caused a duly verified Notice of Intention to file a claim to be personally served upon the Attorney General and by certified mail return receipt requested on September 4, 2001. Thereafter, on June 5, 2003 Claimants filed their Claim with the Clerk of the Court and effected personal service of same upon the Attorney General on June 27, 2003.

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). Court of Claims Act §10(3), applicable to the instant claim, provides:
A claim to recover damages for injuries to property or for personal injuries caused by the negligence or unintentional tort of an officer or employee of the state while acting as such officer or employee, shall be filed and served upon the attorney general within ninety days after the accrual of such claim, unless the 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 such claim. (emphasis supplied).


Claimants timely served their Notice of Intention to file a claim, thereby extending their time in which to file and serve a claim to June 7, 2003. While filing their Claim with the Court on June 5, 2003 was timely, service upon the Attorney General on June 27, 2003 was untimely.

As such, Claimants failed to comply with the service requirements of the Court of Claims Act and their Claim must be dismissed.

The Court now turns to Claimants cross-motion for permission to treat the Notice of Intention as a claim pursuant to Court of Claims Act §10(8)(a). Defendant does not oppose the motion.

The Notice of Intention asserts that on June 7, 2001 Claimant Nancy Greco was driving her daughter's Jeep, with her husband, Claimant Michael Greco as a passenger, northerly on State Route 28 approximately 300 feet north of Tuttle Road in the Town of Webb, Herkimer County when a vehicle operated by a Michele Bronster crossed the centerline of State Route 28 and struck Claimants' vehicle. It is asserted that immediately prior to the accident, the Bronster vehicle encountered a five inch drop-off on or near the shoulder of State Route 28 which caused Bronster to oversteer to regain control of her vehicle and across the centerline. Claimants allege that they each sustained severe personal injuries and each suffered a loss of consortium. The Notice of Intention alleges that the Defendant was negligent, inter alia, in its design, maintenance, repair, construction and signing of the highway in the area of the accident.

As found above, Claimants served a timely Notice of Intention upon the Attorney General but failed to timely serve their Claim upon the Attorney General within two years of the Claim's accrual and now seeks relief under Court of Claims Act §10(8)(a), asking to treat the Notice of Intention as a 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."


Movant's application is timely made for a negligence cause of action (CPLR 214 [5]). The Notice of Intention adequately meets the other requirements set forth in Court of Claims Act §10(8). The Notice of Intention was timely served and set forth sufficient facts to constitute a claim. The only information which is not included is the total sum being claimed for damages. The Court does not find that the failure to state the amount of damages being sought is fatal to the application (see Muller v State of New York, 184 Misc 2d 500, 502) since that defect can be remedied by the filing of an amended claim. Given that the Notice of Intention was served within 90 days of the date of accrual, and adequately apprised defendant of the allegations surrounding the claim, there is no prejudice to the defendant (see Schwartzberg v State of New York, 121 Misc 2d 1095, 1099-1100, affd 98 AD2d 902; Williams v State of New York, 77 Misc 2d 396).

Based upon the foregoing, Defendant's motion to dismiss Claim No. 107830 is GRANTED and Claimants' cross-motion for permission to treat the Notice of Intention as a claim is GRANTED as to their causes of action for negligence as well as their derivative claims. The Chief Clerk is directed to make a copy of the notice of intention, which is contained in Claimants' motion papers as Exhibit A and designate it as a claim. The claim shall be given an appropriate number as if it had been filed on August 31, 2001. Within 30 days of the date this Decision and Order is filed with the Clerk of the Court, Claimants shall file and serve an amended claim to set forth a demand for relief, together with the statutory fee for filing a claim (Court of Claims Act § 11-a). Defendant shall have 40 days from the date of service of the amended claim in accordance with the Uniform Rules for the Court of Claims [22 NYCRR] §206.7(b) to file and serve its answer.


December 30, 2003
Albany, New York

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