New York State Court of Claims

New York State Court of Claims

KERR v. THE STATE OF NEW YORK, #2004-016-030, Claim No. 108634, Motion Nos. M-67870, CM-68019


Synopsis


Claim alleging slip and fall at New York Technical College was dismissed on the grounds that this Court lacks jurisdiction because of improper service of notice of intention and claim; related late claim motion was denied.

Case Information

UID:
2004-016-030
Claimant(s):
CHARMAINE KERR
Claimant short name:
KERR
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108634
Motion number(s):
M-67870
Cross-motion number(s):
CM-68019
Judge:
Alan C. Marin
Claimant's attorney:
Norych and TallisBy: Mitchell B. Tallis, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Grace A. Brannigan, Esq., AAG
Third-party defendant's attorney:

Signature date:
June 3, 2004
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

This is defendant's motion to dismiss the claim of Charmaine Kerr, in which Ms. Kerr alleges that because of defendant's negligence, she slipped and fell in the lobby of the New York Technical College in Kings County on December 5, 2002. Claimant cross-moves for permission to file a late claim pursuant to §10.6 of the Court of Claims Act (the "Act"). The grounds for defendant's motion are that the Court lacks jurisdiction over Kerr's claim because:
* the notice of intention was untimely served;
* the Attorney General's Office was not served with the notice of intention;
* the notice of intention was initially served on the City University of New York by Federal Express;
* the City University of New York was not served with the Claim; and
* the State of New York is not the proper defendant.
* * *
The following facts are not in dispute: The notice of intention in this case was initially served on CUNY by Federal Express on March 6, 2003, 91 days after the incident, and then again by certified mail, return receipt requested on March 10, 2003; the Office of the Attorney General was never served with the notice of intention. The claim, which was served on the Attorney General's Office on December 2, 2003, was not served on the City University. Further, the claim names the State of New York as the defendant.

Section 10.3 of the Act provides that a claim such as this one must be served and filed within 90 days of accrual, unless a notice of intention is served within such time, after which the claim must then be served and filed within two years of accrual. Furthermore, §11.a.(ii) provides that claims and notices of intention against the City University of New York must be served on both the City University and the Attorney General, by either personal service or certified mail return receipt requested.

In this case, claimant failed to comply with the Act in that the notice of intention was served more than ninety days after accrual, was improperly served by Federal Express,[1] and was not served on the Attorney General. Claimant also failed to comply with the Act in that she failed to serve the City University with her claim.

"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).

Finally, as set forth above, in her claim, Ms. Kerr sued the State of New York, and did not name the City University as a defendant. The only proper defendant in this case is the City University. See, e.g., Davalos v City University of New York, Ct Cl dated February 4, 2002 (unreported, claim no. 105280, motion nos. M-64508 and CM-64564, UID #2002-016-010,[2] Marin, J.), in which it was stated that "CUNY and the State are separate and distinct legal entities and the State is not a proper defendant in claims based on the actions of CUNY." See also §11.a.(ii) of the Act.

In sum, this Court lacks jurisdiction over Kerr's claim.
* * *
With regard to claimant's cross-motion for permission to file a late claim, ordinarily, the six factors enumerated in the Act would be considered: whether (1) defendant had notice of the essential facts constituting the claim; (2) defendant had an opportunity to investigate the circumstances underlying the claim; (3) defendant was substantially prejudiced; (4) claimant has any other available remedy; (5) the delay was excusable and (6) the claim appears to be meritorious.

In this case, however, a threshold issue must be addressed. Section 11.b of the Act requires that the particulars of a claim be sufficiently detailed to enable defendant to promptly determine the existence and extent of its liability. Sinski v State of New York, 265 AD2d 319, 696 NYS2d 70 (2d Dept 1999). Here, the substantive portion of the proposed claim states only that Ms. Kerr "was caused to trip and/or fall due to wet floors and fell down approximately fourteen steps" in the New York Technical College lobby.[3] The proposed claim does not state where the water or moisture was; nor does it provide any detail as to how claimant fell or the nature of defendant's negligence. Moreover, Kerr has stated only that she fell on December 5, 2002, with no reference to the time or even portion of the day.[4] In a case such as this one, time can be a significant factor. See, e.g., Savoia v State of New York, Ct Cl dated July 1, 2002 (unreported, claim no. 105181, motion nos. M-64325 and CM-64556, UID #2002-016-070, Marin, J.).

Compliance with the specificity requirements of §11 of the Act is a jurisdictional prerequisite to the maintenance of a claim in this Court. See, e.g., Sheils v State of New York, 249 AD2d 459, 671 NYS2d 519 (2d Dept 1998). In view of the failure of Kerr's proposed claim to meet the jurisdictional requirements of §11 of the Act, it is unnecessary to consider each of the factors set forth in §10.6 of the Act.

For the foregoing reasons, having reviewed the submissions[5], IT IS ORDERED that motion no. M-67870 be granted and that claim no. 108634 be dismissed and IT IS FURTHER ORDERED that cross-motion no. CM-68019 be denied.


June 3, 2004
New York, New York

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




  1. [1]Such was not cured by the second service by certified mail, return receipt requested, as the second service was also untimely.
  2. [2]This and other decisions of the Court of Claims may be found on the Court's website: www.nyscourtofclaims.state.ny.us.
  3. [3]See the proposed claim submitted as exhibit F to claimant's cross-motion papers.
  4. [4]Section 11.b requires that the claim "state the time when . .. [the] claim arose . . ."
  5. [5]The following were reviewed: defendant's notice of motion with affirmation in support and exhibits A and B; claimant's affirmation in opposition with exhibits A-E; claimant's notice of cross-motion with affirmation in support and exhibits A-F; and defendant's affirmation in opposition to cross-motion with exhibit A.