New York State Court of Claims

New York State Court of Claims

DYAL v. THE STATE OF NEW YORK, #2003-031-095, Claim No. 105579, Motion No. M-67007


Synopsis


Case Information

UID:
2003-031-095
Claimant(s):
ANTHONY DYAL
Claimant short name:
DYAL
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105579
Motion number(s):
M-67007
Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
PAUL WILLIAM BELTZ, P.C.BY: KEVIN J. SULLIVAN, ESQ., of counsel
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: WENDY E. MORCIO, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 1, 2003
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on motion by Defendant for dismissal of the claim.
1) Claimant's Notice of Motion, filed June 25, 2003;
2) Affidavit of Wendy E. Morcio, Esq., sworn to June 24, 2003, with attached exhibits. Claimant commenced this action seeking to recover $1,000,000.00 for injuries he sustained on July 21, 2001, in a two car motor vehicle accident near the intersection of Route 33 and Town Line Road in the town of Alden, Erie County. According to Claimant, the accident occurred when the driver of the second car pulled onto Route 33 from Town Line Road in front of Claimant's car. In his underlying claim, Mr. Dyal alleges that the accident and his resulting injuries were caused by the Defendant's negligent design, maintenance, repair and upkeep of the intersection. No notice of intention to file a claim was filed by Claimant. The claim was filed on February 8, 2002, approximately six months after it accrued. Claimant subsequently moved for permission to file a late claim. That motion was denied by a decision and order of this Court filed on October 15, 2002. That motion, however, did not address the alleged jurisdictional defect of this claim.

With this motion, Defendant seeks dismissal of the claim as untimely, based upon Claimant's failure to serve the claim upon the Attorney General within 90 days of the accrual of the claim, as required by Court of Claims Act § 10(3).

Claimant has not submitted opposition to Defendant's motion.

Pursuant to Court of Claims Act §10(3), a claim based upon personal injury resulting from the negligence of an agent of the State, such as is alleged here, must be filed within ninety days unless Claimant has served a notice of intention to file a claim. As stated above, Claimant did not serve a notice of intention to file a claim. It is a fundamental principle of practice in the Court of Claims that the filing and service requirements contained in Court of Claims Act § 10 are jurisdictional in nature and must be strictly construed (Finnerty v New York State Thruway Auth., 75 NY2d 721, 722; Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687). As such, the Claim must be dismissed as untimely.

Based upon the foregoing it is:

ORDERED, that Defendant's motion for dismissal of the claim is granted. The Clerk is directed to close the file.

December 1, 2003
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims