New York State Court of Claims

New York State Court of Claims

ZONE v. THE STATE OF NEW YORK, #2005-032-036, Claim No. 109535, Motion No. M-69672


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
The Proskin Law Firm, P.C.By: Marc D. Greenwald, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Kevan J. Acton, Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
April 12, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant moves this Court for an order pursuant to CPLR 3211 (a) (2) and (7) dismissing claimant's action. The action arose as a result of a slip and fall accident on April 4, 2003, when claimant allegedly fell on an accumulation of ice in a parking lot under the Collar City Bridge in the City of Troy, Rensselaer County. As a result of his fall, claimant shattered his left femur. On July 1, 2003, the Department of Transportation [hereinafter DOT] received a letter from claimant entitled "accident claim notice" containing the date and time of claimant's accident, accident location and his injuries. In February 2004, the Office of the Attorney General received a letter from claimant describing his accident and injuries. Ultimately, the claim was filed with the Court in June 2004.

Defendant now moves to dismiss claimant's action for failure to timely file his claim and serve the Attorney General as required by the Court of Claims Act. In opposing this relief, claimant contends that in June 2003, he spoke to an unidentified individual from DOT's legal department. Claimant states the employee advised him to file notice of his claim by July 4, 2003 with DOT, but failed to advise him that claimant was required to serve the Attorney General or file with the Court of Claims.

Court of Claims Act § 10 (3) provides that negligence claims against the State must be "filed and served upon the [A]ttorney [G]eneral within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the [A]ttorney [G]eneral a written notice of intention to file a claim". Failure to comply with this jurisdictional requirement is fatal to the claim (see Conner v State of New York, 268 AD2d 706, 707 [3d Dept 2000]).

Claimant acknowledges that he failed to serve the Attorney General or file a claim as required. He argues, however, that due to the guidance claimant allegedly received from an employee from the legal department of DOT, his claim should not be dismissed. This argument is in essence an attempt to estop defendant from asserting the jurisdictional defense. The doctrine of "[e]stoppel is [ordinarily] not available against a public agency in the exercise of its governmental functions" (Wolfstich v New York State Tax Com'n, 106 AD2d 745, 748 [3d Dept 1984]). Estoppel is available in limited circumstances such as when an agency acts "wrongfully or negligently, inducing reliance by a party who is entitled to rely and who changes his position to his detriment or prejudice" (Bender v New York City Health & Hospitals Corp. 38 NY2d 662, 668 [1976]). Here, even if the Court credits claimant's version, there is no basis for determining that claimant was entitled to obtain, much less rely, upon legal advice given over the telephone by a DOT employee. As a pro se litigant,[1] claimant represented himself at his own risk and acquired no greater rights than other litigants (see, e.g. Mosso v Mosso 6 AD3d 827, 828 [3d Dept 2004]). Therefore, given that claimant failed to comply with Court of Claims Act § 10 (3), the claim is dismissed. Claimant is not without a remedy, however, as he may seek permission to file a late claim.

April 12, 2005
Albany, New York

Judge of the Court of Claims

Papers Considered:

1. Notice of Motion filed February 1, 2005;

2. Affirmation of Kevan J. Acton dated January 28, 2005; annexed Exhibit A;

3. Affidavit of Steve Zone sworn to February 1, 2005;

4. Affirmation of Marc D. Greenwald dated February 4, 2005; annexed Exhibits A-B;

5. Affirmation of Kevan J. Acton dated February 11, 2005.

[1]Claimant ultimately did obtain counsel and is currently represented.