New York State Court of Claims

New York State Court of Claims

BEST v. THE STATE OF NEW YORK, #2005-028-511, Claim No. 108936, Motion Nos. M-68929, M-68993, M-69292


Synopsis

Defendant's motion to dismiss (M69892)is granted. Claimant's motion for summary

judgment(M68993) is denied. Claimant's motion for post answer default (M69292) is denied.

Case Information

UID:
2005-028-511
Claimant(s):
TIMOTHY BEST The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Claimant short name:
BEST
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108936
Motion number(s):
M-68929, M-68993, M-69292
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
TIMOTHY BEST, pro se
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Paul F. CaginoAssistant Attorney General
Third-party defendant's attorney:

Signature date:
January 31, 2005
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on Defendant's motion to dismiss pursuant to CPLR 3211 and Claimant's motions for summary judgment and default judgment:


Motion No. M -68929

1. Notice of Motion and Supporting Affirmation of Assistant Attorney General Paul F. Cagino (Cagino Affirmation), filed August 11, 2004


Motion No. M -68993


2. Notice of Motion and Supporting "Affirmation" of Timothy Best (Best "Affirmation"), filed August 23, 2004.


3. Affirmation in Opposition of Assistant Attorney General Paul F. Cagino (Cagino Opposition), filed September 13, 2004.


4. Letter of Timothy Best (Best Letter) received September 27, 2004.


Motion No. M -69292


5. Notice of Motion and Supporting "Affirmation" of Timothy Best (Best II), filed October 27, 2004.


6. Affirmation in Opposition of Assistant Attorney General Paul F. Cagino (Cagino II), filed November 3, 2004.


7. Reply "Affirmation" of Timothy Best (Best Reply), filed November 18, 2004.

Filed Papers:


Claim No. 108936 filed February 20, 2004;
Verified Answer filed July 30, 2004.
Decision and Order of the Hon. Richard E. Sise, filed August 23, 2004.
Note of Issue filed September 16, 2004.[1]

The Claimant, Timothy Best, seeks damages resulting from the Department of Motor Vehicles' alleged negligence in failing to notify Claimant that his driver's license was suspended or revoked. In May 2003 there were proceedings in New York County Supreme Court in which a decision and order was entered in favor of the Department of Motor Vehicles (Claim ¶ 4). In October 2003 Claimant sent the Defendant a letter contesting his conviction of numerous traffic violations in an effort to reinstate his driver's license (Claim ¶ 5). The Defendant allegedly rejected Claimant's letter and notified him that his driver's license would be reinstated when Claimant paid the required fines (Claim Exhibit A). Claimant asserts that the Defendant is negligent for failing to accept Claimant's letter (Claim ¶ 9 ).

The tortured procedural posturing of this action began with Claimant's previously filed claim (Claim No. 108719)which was dismissed for failure to pay the required filing fees. Claimant thereafter filed a "summons and complaint"[2] with the Clerk's office on February 20, 2004 which was assigned Claim No. 108936. On July 15, 2004 a conference was held to unravel the claim's status at which the parties stipulated that the summons and complaint would be deemed a claim.

The Defendant now moves to dismiss the instant claim pursuant to CPLR 3211 (a) (5) and (7) arguing that the Claim fails to state a cause of action and is untimely. The Defendant alleges that the Claim does not comply with the requirements of Court of Claims Act § 11 as the Claim was neither filed nor served within 90 days of accrual and the Claim was improperly served by regular mail (Cagino Affirmation ¶ 10). The Defendant received the Claim on February 18, 2004 (Cagino Affirmation 11). The Defendant argues that the alleged incident stems from traffic violations which occurred between 1995 and 1996, (Cagino Affirmation 10). Claimant opposes the motion.

While the instant motion was pending, Claimant submitted motions seeking summary judgment (M-68993) and default judgment (M-69292) in which Claimant contends that he is entitled to default judgment because the Defendant failed to respond to his demand for a bill of particulars which was served on August 18, 2004 (Best II). Defendant opposes both motions.

Prior to reaching Claimant's motions, the Court must first address the jurisdictional defenses raised by Defendant in the instant motion which were preserved with sufficient particularity in accordance with Court of Claims Act § 11 (c) (see Sinacore v State of New York, 176 Misc 2d 1, 6).

For purposes of this CPLR 3211 (a) (5) and (7) motion to dismiss, the Court assumes the truth of the facts as alleged by the Claimant and draws all inferences from such facts in favor of the non-moving party (Bassile v Covenant House, 152 Misc 2d 88, affd 191 AD2d 188, lv denied 82 NY2d 656).
It is well established that the requirements set forth in Court of Claims Act § 11 are jurisdictional in nature and, as such, must be strictly construed (see Lichtenstein v State of New York, 93 NY2d 911, 912-913; Dreger v New York State Thruway Auth., 81 NY2d 721, 724). The Court cannot "obtain jurisdiction
to adjudicate a claim unless the claimant timely files a claim or a notice of intention to file a claim"
within 90 days of accrual
(Selkirk v State of New York, 249 AD2d 818, 819; see also Dreger v New York State Thruway Auth., 177 AD2d 762
) Pursuant to Court of Claims Act § 10 (3) claims sounding in tort must be served and filed within ninety days of accrual unless a Claimant has timely served a notice of intention to file a claim.

Rather than serving a notice of intention, Claimant served a Claim which was received by the Defendant on February 18, 2004 and filed with the Court on February 20, 2004. The Claim includes the May 2003 date of the Supreme Court action and the October 2003 date in which Claimant sent Defendant a letter contesting his convictions (Claim ¶ 4, 5). Assuming Claimant is seeking relief from the Defendant's failure to accept Claimant's letter in October 2003, the action is still untimely because Claimant failed to properly serve his claim within the 90 day statute of limitations. Thus the Court finds that the Claim suffers from a jurisdictional defect and must be dismissed.

Assuming arguendo that the Claim was timely commenced and stated a cause of action, the Court would nevertheless grant Defendant's motion because the Claim was improperly served.
Court of Claims Act
§
11 (a) provides, in relevant part, that a copy of the Claim at issue shall be served personally or by certified mail, return receipt requested, upon the attorney general (see Turley v State of New York, 279 AD2d 819).
Claimant served Defendant by regular mail (Cagino Affirmation 11) and the Court so finds. Claimant's contentions that the Defendant was served with personal knowledge at the preliminary conference does not constitute proper service as required by the
Court of Claims Act
§
11
(Best "Affirmation"; Note of Issue ¶ 8 (2).

A motion to impose the drastic remedy of default pursuant to CPLR 3126 (3) is available when a party willfully fails to obey a Court order directing disclosure (Goodman, Rackower & Agiato v Lieberman, 260 AD2d 599). In order for the Court to consider Claimant's motion for default, Claimant must first seek a Court order compelling Defendant's responses to his demand for a bill of particulars and Defendant must fail to comply with such an order (see CPLR 3042 (c) (d)). Claimant's motion for post answer (M-69292) default is premature because Claimant failed to take the appropriate steps prior to seeking a motion for default. Moreover, Claimant's motion (M-69292) is improper because all discovery is stayed pending motions under CPLR 3211(see CPLR 3214 (b); Blancovitch v City of New York, 131 AD2d 418).

Accordingly, Defendant's motion (M-68929) is granted and Claim No. 108936 is dismissed.

By virtue of the foregoing the Court does not reach Claimant's motions for summary judgment and post answer default as they are rendered moot and are therefore denied.

January 31, 2005
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims




[1]Claimant's "note of issue" will be treated by the Court as an affidavit in opposition to Defendant's motion to dismiss because it contains rebuttal to issues raised in Defendant's motion.
[2]An action is commenced in the Court of Claims by the filing and service of a Claim (see Court of Claims Act § 11). A summons and complaint is the appropriate pleading in Supreme Court (see CPLR 304).