New York State Court of Claims

New York State Court of Claims

CITY OF ALBANY v. THE STATE OF NEW YORK, #2004-015-417, Claim No. 109213, Motion No. M-68495


Court granted State's pre-answer motion to claim seeking to recover damages to city street occasioned by state contractors performing work on Court of Appeals building. The claim was filed late even if measured from a January 20, 2004 accrual date and the Court therefore lacks jurisdiction.

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:
Joseph G. McCann, Esquire, Assistant Corporation Counsel to Gary F. Stiglmeier, Esquire, Corporation Counsel, The City of Albany
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Michael C. Rizzo, Esquire and Glenn C. King, EsquireAssistant Attorneys General
Third-party defendant's attorney:

Signature date:
August 13, 2004
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant's pre-answer motion to dismiss the claim for lack of jurisdiction is granted. The claim filed on April 20, 2004 seeks to recover damages to a portion of Pine Street in the City of Albany, a cobblestone city-owned right-of-way over which the defendant had acquired a temporary easement in order to provide access to construction vehicles during renovation of the state owned Court of Appeals building. The claim alleges that the cobblestone surface of Pine Street was damaged during the course of the project which began "in late Winter and/or early Spring 2002". The claim does not set forth a project completion date but specifically asserts in paragraph 4 "[t]his claim accrued on or about the 20th day of January, 2003".

Prior to service of its answer the defendant moved to dismiss on the grounds that the claim was untimely served and filed. Claimant opposed the motion alleging through its attorney that the claim accrued on January 20, 2004 and that the filing and service of the claim on April 20, 2004 was therefore timely. Counsel did not explain the obvious inconsistency regarding the accrual date set forth in the claim vis-à-vis the date alleged in his affidavit in opposition. Furthermore, as pointed out by defense counsel in his reply affidavit, claimant neither amended its claim as of right (CPLR 3025 [a]) to assert an accrual date of January 20, 2004 nor moved for leave to amend the claim (CPLR 3025 [b]) in response to the defendant's motion.

Pursuant to section 10 (3) of the Court of Claims Act a claim for negligent destruction of property must be served and filed within 90 days of accrual. Taking the allegations of the claim including the alleged date of accrual (January 20, 2003) at face value the service and filing of the claim on April 20, 2004 occurred more than ninety days subsequent to accrual and was therefore untimely.

Even if the Court were to assume that the reference in the claim to an accrual date of January 20, 2003 was a mistake the error could not be disregarded pursuant to CPLR 2001 since service and filing of the instant claim on April 20, 2004 occurred outside the 90 day limit for commencement even if measured from January 20, 2004[1]. Absent proof of service of a notice of intention to file a claim, which claimant has not alleged here, the failure to timely serve and file the claim, raised with particularity in defendant's pre-answer motion[2], requires that the defendant's motion to dismiss the claim for lack of jurisdiction be granted.

The claim is accordingly dismissed.

August 13, 2004
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated May 20, 2004;
  2. Affidavit of Michael C. Rizzo sworn to May 20, 2004;
  3. Affidavit of Joseph G. McCann sworn to June 9, 2004 with exhibits;
  4. Affidavit of Glenn C. King sworn to June 14, 2004

[1]2004 is a leap year. Therefore, the time for service and filing of the claim would have expired on April 19, 2004.
[2]See Court of Claims Act § 11 (c); Vogel v State of New York, 187 Misc 2d 186.