New York State Court of Claims

New York State Court of Claims

DIAZ v. THE CITY UNIVERSITY OF NEW YORK, HERBERT H. LEHMAN COLLEGE, STATE OF NEW YORK, #2004-016-027, Claim No. 102545, Motion No. M-68067


Synopsis


Case Information

UID:
2004-016-027
Claimant(s):
MARILYN DIAZ
Claimant short name:
DIAZ
Footnote (claimant name) :

Defendant(s):
THE CITY UNIVERSITY OF NEW YORK, HERBERT H. LEHMAN COLLEGE, STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102545
Motion number(s):
M-68067
Cross-motion number(s):

Judge:
Alan C. Marin
Claimant's attorney:
Law Office of John FazziniBy: Bonnie Peters-Lawston, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Grace A. Brannigan, Esq., AAG
Third-party defendant's attorney:

Signature date:
May 18, 2004
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is claimant's motion to vacate the Court's Order filed July 9, 2003, which dismissed the claim of Marilyn Diaz. In such claim, Ms. Diaz alleged that because of defendant's negligence, she slipped and fell on the staircase in the Herbert H. Lehman College library on April 28, 1999. On March 27, 2003, the Court sent claimant's counsel a letter directing that counsel advise as to the status of this case within thirty days of the letter's receipt. Counsel provided the Court with a May 5, 2003 letter stating that the claim "is still open and being litigated. It has not settled. Please do not dismiss the case." The Court then sent the parties a May 9, 2003 letter scheduling a conference for June 25, 2003 at 10:00 a.m. Counsel for defendant appeared, but no appearance was made on behalf of Ms. Diaz. The claim was subsequently dismissed pursuant to §19.3 of the Court of Claims Act in an Order filed on July 9, 2003.

More than seven months later, on February 23, 2004, claimant filed the instant motion, stating that "[d]ue to law office failure, [the June 25, 2003 conference] was not entered into the office diary and plaintiff's office did not appear. . ." See ¶10 of the February 20, 2004 affirmation of Bonnie Peters-Lawston.

Defendant opposes this motion, among other things, on the ground that the Office of the Attorney General was not served with a notice of intention in this case and thus this Court lacks jurisdiction over the claim.[1] Section 10.3 of the Court of Claims Act provides that a claim must be served on the Attorney General within ninety days of accrual of the claim unless a notice of intention is served within such time, after which a claim must then be served within two years. Claimant's papers contain a "notice of claim" (which term claimant apparently uses instead of a notice of intention), with certified mail receipts indicating service on the Comptroller of the City of New York on June 2, 1999 and Lehman College on June 1, 1999, but no such receipt with respect to the Attorney General. In her reply papers, claimant states that "[t]he Notice of Claims[2] and Verified Claim are attached . . . All have been served properly upon the respective parties." However, she does not provide any documentation as to service on the Attorney General, or for that matter, dispute that the Attorney General was not served with her notice of intention.

"It is well established that compliance with sections 10 and 11 of the Court of Claims Act pertaining to the timeliness of filing and service requirements respecting claims and notices of intention to file claims constitutes a jurisdictional prerequisite to the institution and maintenance of a claim against the State, and accordingly, must be strictly construed . . ." Byrne v State of New York, 104 AD2d 782, 783, 480 NYS2d 225, 227 (2d Dept 1984), lv denied, 64 NY2d 607, 488 NYS2d 1023 (1985) (citations omitted). See also Mallory v State of New York, 196 AD2d 925, 601 NYS2d 972 (3d Dept 1993). In short, this Court lacks jurisdiction over claim no. 102545.

For the foregoing reasons, having reviewed the submissions[3], IT IS ORDERED that motion no. M-68067 be denied.



May 18, 2004
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims



  1. [1]Defendant's sixth affirmative defense in its Answer states that "[t]he Court lacks jurisdiction over the claim due to claimant's failure to serve the notice of intention upon the Attorney General's office . . ."
  2. [2]As set forth above, this is an apparent reference to a notice of intention.
  3. [3]The following were reviewed: claimant's notice of motion with "affirmation" of Marilyn Diaz, affirmation of Bonnie Peters-Lawston and exhibits A-G; defendant's affirmation in opposition with exhibit A; and claimant's reply affirmation with exhibit A.