New York State Court of Claims

New York State Court of Claims

LaPLANT v. THE STATE OF NEW YORK, #2004-015-590, Claim No. 105815


Synopsis


Case Information

UID:
2004-015-590
Claimant(s):
REGINALD J. LaPLANT and JUDY B. LaPLANT
Claimant short name:
LaPLANT
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105815
Motion number(s):

Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Cade & Saunders, P.C.By: Steven M. Connolly, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Michael W. Friedman, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
February 10, 2004
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Immediately prior to the start of a scheduled trial on the issue of liability the defendant moved to dismiss the claim on the ground that the Court lacked jurisdiction to hear and decide the case. Defendant argued that dismissal was warranted because the claim was both untimely and served upon the Attorney General by regular mail rather than by a method of service prescribed by Court of Claims Act § 11 (a)(i), a defense preserved with particularity in its answer.

Claimants'[1] attorney opposed the oral motion insisting that the claim was served upon the Attorney General within the time period prescribed in the decision and order of the Hon. John L. Bell dated March 8, 2002. Claimant did not dispute that the claim was served by regular mail.

The Court reserved decision on the State's motion and allowed the attorneys to submit post-trial briefs on the timeliness issue. Testimony proceeded on the issue of liability. Defendant's motion is now granted and the claim is dismissed for the following reasons.

The motor vehicle accident giving rise to this claim occurred on September 25, 2000. At the time of the accident claimant was operating his truck in an easterly direction on State Route 3 in the Town of Armand, Essex County, when he slowed to make a left turn and was struck from behind by a vehicle operated by an employee of the Department of Transportation.

Claimant did not serve a notice of intention to file a claim nor did he serve and file a claim within 90 days of the September 25, 2000 accrual date as required by Court of Claims Act § 10 (3). Instead claimants' attorneys made a motion for late claim relief pursuant to Court of Claims Act § 10 (6) which was assigned to the Hon. John L. Bell, a former Judge of this Court. Judge Bell denied the application by decision and order dated March 23, 2001 due to claimants' failure to demonstrate a potentially meritorious claim. That denial, however, was without prejudice and claimants' attorney made a second application for late claim relief which was granted by a decision and order of Judge Bell dated September 6, 2001 which provided in part as follows:
ORDERED
that claimants' motion is granted and they are directed to serve their claim upon the Attorney General (either personally or by certified mail, return receipt requested) and to file the claim with the Chief Clerk of the Court of Claims (including the appropriate filing fee) within 35 days of the filed-stamped date of this Decision and Order, such service and filing are to be in accordance with the Court of Claims Act and the Uniform Rules for the Court of Claims.
Claimants failed to file and serve their claim within the time period designated in Judge Bell's September 6, 2001 decision and order and claimants thereafter made a third motion for late claim relief. In a decision and order dated March 8, 2002 Judge Bell generously treated the motion as one seeking an extension of the time period set forth in his September 6, 2001 decision and order pursuant to CPLR 2004. Significantly, Judge Bell's March 8, 2002 decision and order ended with the following unambiguous ordered paragraphs:
ORDERED that claimants' motion is granted to the extent that within 15 days of the filed-stamped date of this decision and order claimants' attorney shall deposit with the Chief Clerk of the Court of Claims a check for the sum of five hundred dollars ($500.00) payable to the New York State Department of Law for transmittal to said entity; and it is further

ORDERED that upon the deposit of said check with the Chief Clerk the deadline for serving and filing the claim, as set forth in the court's decision and order of September 6, 2001, shall be extended to 30 days from the filed-stamped date of this decision and order.
The March 8, 2002 decision and order was filed with the Chief Clerk of the Court on March 15, 2002. Pursuant to the above quoted directions the claimants were required to file and to serve their claim on or before April 14, 2002[2] "as set forth in the Court's decision and order of September 6, 2001" (i.e., either personally or by certified mail, return receipt requested).

Defendant's verified answer which was filed with the Court on May 24, 2002 states in pertinent part as follows:
AS AND FOR A THIRD DEFENSE:

SIXTH: This Court lacks personal jurisdiction as the claim was not served in compliance with Section 11 (a) of the Court of Claims Act in that the claim was delivered by ordinary mail instead of served personally or by certified mail, return receipt requested.
Claimant does not deny that the claim was served upon the Attorney General by regular mail as evidenced by the envelope attached to the claim which bears a postage meter stamp of $.57 and none of the indicia of service by certified mail, return receipt requested (see, Exhibit A). In fact, claimants' counsel confirms that the claim was served by regular mail in his affidavit in opposition to the motion and provides as Exhibit B of his post-trial submission an affidavit of service dated April 11, 2002 reflecting service by regular mail rather than certified mail, return receipt requested.

There is no question that Court of Claims Act § 11 (a) (i) establishes service of a claim upon the Attorney General either personally or by certified mail, return receipt requested as a statutory requirement conditioning suit in this Court. The failure to comply with the manner of service requirements of the Court of Claims Act divests this court of jurisdiction and requires dismissal of a claim (Rodriguez v State of New York, 307 AD2d 657; Govan v State of New York, 301 AD2d 757; Thompson v State of New York, 286 AD2d 831, Philippe v State of New York, 248 AD2d 827). The defendant's motion must be granted and the claim is, therefore, dismissed because the proof establishes, and the claimant concedes, that the claim herein was served by regular mail and not one of the methods of service authorized in Court of Claims Act § 11 (a) (i). In this regard the Court finds that the manner of service defense was preserved with adequate particularity in the answer.

The Court rejects the instant claimants' argument that the defendant has not been prejudiced by claimants' service of the claim using ordinary mail. Prejudice is not the issue. Furthermore, the Court rejects claimants' argument that the defendant's failure to move for dismissal within sixty days following improper service of the claim pursuant to CPLR 3211 (e) constitutes a waiver of the manner of service defense. This argument was raised, treated at length and rejected in Diaz v State of New York, 174 Misc 2d 63. There the Court held that principles of statutory construction required a conclusion that CPLR 3211 (e) has no application to claims in the Court of Claims. This Court agrees with that assessment and adopts the same conclusion.

The defendant's motion is granted and the claim is dismissed.


February 10, 2004
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims





[1]Claimant Judy LaPlant's claim is derivative only and references to claimant in the singular refer to Reginald La Plant.
[2]Since April 14, 2002 was a Sunday, service received on Monday April 15, 2002 would be deemed timely pursuant to General Construction Law § 25-a (1).