New York State Court of Claims

New York State Court of Claims

NATIONWIDE v. THE STATE OF NEW YORK, #2004-010-025, Claim No. 109384, Motion Nos. M-68738, CM-68802


Synopsis


Defendant's motion to dismiss is granted. Claimant failed to allege any basis upon which the State may be held liable for any purported negligence attributable to the driver of the NYSTA vehicle.

Case Information

UID:
2004-010-025
Claimant(s):
NATIONWIDE MUTUAL INS. COA/S/O KATHLEEN M. GARVIN
Claimant short name:
NATIONWIDE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109384
Motion number(s):
M-68738
Cross-motion number(s):
CM-68802
Judge:
Terry Jane Ruderman
Claimant's attorney:
D'AMBROSIO & D'AMBROSIO, P.C.By: Frank G. D'Esposito
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New York
By: John M. Healey, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 18, 2004
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1-3 were read and considered by the Court on defendant's motion to dismiss and claimant's cross-motion for leave to serve a late Notice of Intention and to amend the claim to add the New York State Thruway Authority (NYSTA) as a defendant:

Notice of Motion; Attorney's Supporting Affirmation and Exhibits.......................1

Notice of Cross-motion; Attorney's Supporting Affirmation and Exhibits.............2

Attorney's Reply Affirmation...................................................................................3

Claim No. 109384 alleges that on July 29, 2003, a NYSTA vehicle struck the 2002 Honda Accord owned and operated by claimant's subrogor, Kathleen M. Garvin. Claimant seeks $1,058.74 in damages for the property damage to the Honda (Defendant's Ex. B). The claim further alleges that "the accident and damages were caused solely and entirely by reason of the negligence of the State of New York, its officers, agents, servants, and/or employees" (Defendant's Ex. B ¶6).
Defendant's Motion
Defendant seeks dismissal of the claim based on claimant's failure to allege any basis upon which the State may be held liable for any purported negligence attributable to the driver of a NYSTA vehicle. The NYSTA is an autonomous public corporation, separate and distinct from the State and service upon the Attorney General does not confer jurisdiction upon the NYSTA (see Bonaventure v New York State Thruway Auth., 108 AD2d 1002, 1003; Cantor v State of New York, 43 AD2d 872, 873).

Moreover, there is no basis for this claim against the State because the State is not the proper party defendant. Accordingly, defendant's motion is GRANTED.
Claimant's Cross-motion
As noted supra, service upon the State does not establish jurisdiction over the NYSTA. Therefore, claimant's cross-motion to amend the claim to add the NYSTA as a defendant must be denied because a jurisdictional defect cannot be cured by amendment (see Finnerty v New York State Thruway Auth., 75 NY2d 721; Grande v State of New York, 160 Misc 2d 383). It is also noted that there is no authority for granting an application for leave to serve a late Notice of Intention (Court of Claims Act). To the extent that claimant's application may be construed as one for leave to serve and file a late claim, claimant has failed to make a sufficient showing to warrant granting such relief. Accordingly, claimant's cross-motion is DENIED and Claim Number 109384 is DISMISSED.

August 18, 2004
White Plains , New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims