New York State Court of Claims

New York State Court of Claims

DUNCAN v. THE STATE OF NEW YORK, #2005-033-136, Claim No. 109849, Motion No. CM-69957


Synopsis



Case Information

UID:
2005-033-136
Claimant(s):
MATTHEW DUNCAN
Claimant short name:
DUNCAN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109849
Motion number(s):

Cross-motion number(s):
CM-69957
Judge:
James J. Lack
Claimant’s attorney:
Pollack & KotlerBy: Lynn R. Kotler, Esq.
Defendant’s attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Victor J. D’Angelo, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 1, 2005
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a claim by Matthew Duncan (hereinafter “claimant”) for injuries due to the alleged negligence of the State of New York (hereinafter “defendant”) on June 10, 2004, in Bay Shore, New York. Claimant was involved in a motor vehicle accident with a New York State trooper on the Southern State Parkway near the Fifth Avenue exit.

Defendant moves to dismiss the claim for failure to timely file the claim in the Clerk’s Office within 90 days of the date of the occurrence, pursuant to Court of Claims Act §10[1].

Claimant served the claim upon the NYS Attorney General’s Office on August 30, 2004, by certified mail, return receipt requested. The claim was filed in the Court of Claims Clerk’s Office on September 15, 2004. The claim was filed in the Clerk’s Office 97 days after the date of occurrence.

Court of Claims Act §10(3) states:
[a] claim to recover damages for injuries to property or for personal injuries caused by the negligence or unintentional tort of an officer or employee of the state while acting as such officer or employee, shall be filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after the accrual of such claim.

Court of Claims Act §11(a)(i) states:

The claim shall be filed with the clerk of the court; and, except in the case of a claim for the appropriation by the state of lands, a copy shall be served upon the attorney general within the times hereinbefore provided for filing with the clerk of the court either personally or by certified mail, return receipt requested, or, where authorized by rule of the chief administrator of the courts and upon consent of the attorney general, by facsimile transmission or electronic means, as defined in subdivision (f) of rule twenty-one hundred three of the civil practice law and rules, in such manner as may be provided by rule of court. Any notice of intention shall be similarly served upon the attorney general within the times hereinbefore provided for service upon the attorney general. Service by certified mail, return receipt requested, upon the attorney general shall not be complete until the claim or notice of intention is received in the office of the attorney general. Personal service upon the attorney general shall be made in the same manner as described in section three hundred seven of the civil practice law and rules.

In opposition, claimant argues that the filed document was only a notice of intention and was mishandled by the Clerk’s Office because it was entitled “Notice of Claim”. In support of her argument, counsel argues that the “Notice of Claim” was initially rejected by the Clerk’s Office because the $50.00 filing fee was not paid. Counsel states that the check was not sent because the “Notice of Claim” was meant as a notice of intention to be filed in the Clerk’s Office.

The Court is cognizant of the fact that the majority of attorneys appearing in the Court of Claims, as claimant’s counsel, are not regular practitioners in this Court. However, the statutes and rules governing service and procedure within this Court are not hidden. I am bound by the jurisdictional requirements of the Court of Claims Act and its rules and must decide issues based upon the facts which are before me.

It is clear from counsel’s affirmation, in explaining her intentions, that she had looked at the Court of Claims Act prior to serving and filing her papers. As such, counsel would know that there is no requirement to file a notice of intention with the Clerk of the Court.[2] It is also incomprehensible that counsel would refile her rejected “Notice of Claim” with the $50.00 filing fee, unless it was meant to be a claim. The mistakes made in this matter were not those of the Clerk’s Office, but of counsel.

The requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Lurie v State of New York, 73 AD2d 1006, aff’d 52 NY2d 849). The purpose of these requirements is to give the State prompt notice of an occurrence and an opportunity to investigate the facts and prepare a defense. It is well settled that if the filing is not timely then the claim is subject to dismissal (Greenspan Bros. v State of New York, 122 AD2d 249).

Based upon the foregoing, defendant’s motion to dismiss is granted. The claim is dismissed and the Clerk of the Court is directed to close the file.


September 1, 2005
Hauppauge, New York

HON. JAMES J. LACK
Judge of the Court of Claims




[1].The following papers have been read and considered on defendant’s cross-motion: Notice of Cross-Motion dated March 30, 2005 and filed March 31, 2005; Affirmation in Support of Defendant’s Cross-Motion and in Opposition to Claimant’s Motion to File a Late Claim of Victor J. D’Angelo, Esq. with annexed Exhibits A-C dated March 30, 2005 and filed March 31, 2005; Affirmation in Opposition to Defendant’s Cross-Motion of Lynn R. Kotler, Esq. with annexed Exhibits A-C dated June 18, 2005 and filed June 23, 2005.

Claimant filed and served a motion to file a late claim, M-69869. By letter dated June 15, 2005, claimant’s counsel advised the Court the motion was withdrawn.
[2].With an effective date of August 2, 1995, the Court of Claims Act §11 was amended to replace the requirement of filing a notice of intention, with service of the notice of intention upon the Attorney General by personal service or certified mail, return receipt requested.