New York State Court of Claims

New York State Court of Claims

MASSEY v. THE STATE OF NEW YORK, #2003-034-001, Claim No. 105578, Motion No. M-67024


Synopsis


Defendant moved without opposition for summary judgment dismissing the action under CPLR 3212, based upon Claimant's untimely commencement, or dismissal under CPLR 3216(a) for want of prosecution. The court granted dismissal under CPLR 3212, based upon Claimant's failure to timely serve the Attorney General under Court of Claims Act §§10(3) and 11(a), but denied relief under CPLR 3216 due to Defendant's failure to serve a proper demand under CPLR 3216 (b)(3)

Case Information

UID:
2003-034-001
Claimant(s):
TONI Y. MASSEY
Claimant short name:
MASSEY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105578
Motion number(s):
M-67024
Cross-motion number(s):

Judge:
MICHAEL E. HUDSON
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:
AUGUST 11, 2003
City:
BUFFALO
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision


The following papers, numbered 1 and 2, were reviewed by the Court in this motion to dismiss under CPLR 3212 and 3216:
1. Notice of Motion, filed June 27, 2003;
2. Affidavit of Wendy E. Morcio, Esq., sworn to June 26, 2003, with attached exhibits that include the parties' respective pleadings.


Defendant has moved for summary judgment dismissing the within action pursuant to CPLR 3212 for lack of subject matter jurisdiction, or, in the alternative, for dismissal under CPLR 3216 for want of prosecution. Claimant has not submitted any papers in opposition to this motion, and the Court will now grant the requested relief to the extent premised on CPLR 3212.

Claimant commenced this action to recover for personal injuries allegedly sustained on July 21, 2001, claiming negligence in Defendant's maintenance of the intersection of Townline Road and Genesee Street in the Town of Alden. Given the nature of her claim, she thus was obligated to comply with Court of Claims Act §10(3), and either file and serve her claim within ninety days of accrual, or serve a notice of intention to file a claim within the same time frame, and thereby extend the time limitations for commencement to two years from accrual. Those filing and service constraints, and the related service requirements of Court of Claims Act §11, are jurisdictional in nature, since the State has conditioned its waiver of sovereign immunity upon compliance with those limitations (Court of Claims Act §8; Alston v State of New York, 97 NY2d 159, 162-163; Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723).

Here, Defendant has urged that Claimant did not serve a notice of intention to file a claim, and effected service of her claim on January 28, 2002, more than ninety days after the date of the alleged incident. No motion was made for relief from the time limitations set forth in Court of Claims Act §10(3), although the Court notes that by Order dated September 25, 2002 (Minarik, J.), a similar application in the related action of Dyal v State of New York, Claim No. 105579, was denied. Claimant has not disputed the allegations raised herein, and the Court is compelled to dismiss this action for lack of timely service upon the Attorney General.

To the extent relief also has been urged under CPLR 3216, Defendant's motion will be denied. Service of a demand to resume prosecution that conforms with CPLR 3216(b)(3) is a condition precedent to dismissal for want of prosecution (Chase v Scavuzzo, 87 NY2d 228). Defendant's correspondence to Claimant dated June 4, 2003, does not satisfy the demand requirements, service provisions and time allowances set forth within that section, and thus cannot support relief under CPLR §3216(a). Based upon the foregoing, it is

ORDERED, that Defendant's motion for dismissal of the action is granted to the extent premised on CPLR 3212. The Clerk is directed to close the file.


AUGUST 11, 2003
BUFFALO, New York

HON. MICHAEL E. HUDSON
Judge of the Court of Claims