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
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.