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,
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
Note of Issue filed September 16, 2004.
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
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
, 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
(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
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