New York State Court of Claims

New York State Court of Claims

ALLSTATE v. THE STATE OF NEW YORK , #2005-030-501, Claim No. 109728, Motion No. M-69381


Synopsis



Case Information

UID:
2005-030-501
Claimant(s):
ALLSTATE INSURANCE COMPANY A/S/O ALAN ABT
Claimant short name:
ALLSTATE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109728
Motion number(s):
M-69381
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
CARL S. YOUNG & ASSOCIATES BY: CARL S. YOUNG, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: ELYSE J. ANGELICO, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
January 12, 2005
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1 to 5 were read and considered on the disposition of the Court's Order to Show Cause marked returnable January 5, 2005:
  1. Order to Show Cause dated November 22, 2004
  2. Answering Affirmation by Carl S. Young, Attorney for Claimant, dated December 9, 2004
  1. Affidavit by Catherine Naveed, Clerk, Claims Bureau, Attorney General's Office, sworn to January 4, 2005
  1. Letter by Elyse J. Angelico, Assistant Attorney General, dated January 3, 2005
  2. Filed Papers: Claim
After carefully reviewing the papers issued and submitted and the applicable law the Order to Show Cause is resolved as follows:

The Court is satisfied that Claimant was duly served with a copy of the Order to Show Cause, issued by the Court after its review of the Claim herein. In the Claim, filed on August 16, 2004, the Claimant avers that it served a Notice of Intention to file a claim upon the Defendant State of New York on May 25, 2004, within ninety (90) days of the accrual date alleged. The Affidavit of Service accompanying the Claim indicates that it was served on the Office of the Attorney General by certified mail, return receipt requested, on August 12, 2004. Claimant apparently served the Claim on the Attorney General's Office again on November 19, 2004, by the same means.

The Order to Show Cause was issued to allow Claimant the opportunity to establish why the Claim should not be dismissed since by its terms the proper party defendant is not the State of New York but rather the New York State Thruway Authority: a distinct entity that must be served separately for the purpose of establishing jurisdiction over the parties.

In an Answering Affirmation, the Attorney for Claimant acknowledges that the conduct complained of in the Claim was performed by the New York State Thruway Authority or its agents. He further states that naming the State of New York in the caption was inadvertent, and that subsequent failures to serve the New York State Thruway Authority simply followed from having typed the wrong name in the first place. He then requests that the Court "order an amendment of the caption to substitute the. . . [New York State Thruway Authority] as the defendant and direct service of the amended claim upon the . . . [New York State Thruway Authority]." [Affirmation by Carl S. Young, ¶3].

Notably, the Attorney for Claimant does not indicate that the Claim was ever served on the New York State Thruway Authority.

While it is true that the Court of Claims has exclusive jurisdiction to hear tort claims against the New York State Thruway Authority, it is necessary to serve both the Attorney General and the Thruway Authority in order to acquire jurisdiction. Finnerty v New York State Thruway Authority, 75 NY2d 721 (1989).

In the meantime, it appears that the Notice of Intention that had been served upon the Office of the Attorney General was rejected and returned on April 16, 2004 because it was not verified, [Civil Practice Law and Rules 3022], and a properly verified Notice of Intention was then served on May 25, 2004. [See Affidavit of Catherine Naveed, ¶ 4]. Thereafter, the present Claim was rejected and returned by the Office of the Attorney General on November 22, 2004, due to improper verification. See Lepkowski v State of New York, 1 NY3d 201, 210 (2003).

At this point, it would seem that an improperly verified claim has been served on a Defendant who is not a proper party in the first instance, and is subject to dismissal based upon that ground alone.

Claimant's presentation merely begs the question. While the excuses offered might be included in a motion for permission to serve and file a late claim, [See generally Court of Claims Act §10(6)], or perhaps a motion to amend the claim [See Civil Practice Law and Rules §3025; 22 NYCRR §206.7(b)] Claimant has failed to establish why the within Claim should not be dismissed for failing to timely serve the proper party Defendant: the New York State Thruway Authority.

Accordingly, Claim Number 109728 is hereby dismissed in its entirety.


January 12, 2005
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims