New York State Court of Claims

New York State Court of Claims

ANZISI v. THE STATE OF NEW YORK, #2005-033-138, Claim No. None, Motion No. M-70270


Synopsis



Case Information

UID:
2005-033-138
Claimant(s):
JEAN ANZISI and VINCENZO ANZISI
Claimant short name:
ANZISI
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK1 1.The Court sua sponte amends the caption to read The State of New York as the Defendant.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-70270
Cross-motion number(s):

Judge:
James J. Lack
Claimant’s attorney:
Jean and Vincenzo Anzisi, Pro Se
Defendant’s attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Anne C. Leahey, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 8, 2005
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a motion by Jean and Vincenzo Anzisi (hereinafter “movants”) for permission to file a late claim pursuant to Court of Claims Act §10(6)[2], relating to the alleged negligence of the State of New York on February 21, 2002.

The alleged negligence of the State of New York (hereinafter “defendant”) is the failure to maintain a section of roadway of the Meadowbrook Parkway in the Town of Hempstead, New York. Movant Vincenzo was operating a motorcycle southbound on the Meadowbrook Parkway at the exit ramp leading to the eastbound Southern State Parkway. According to movant Vincenzo, the broken and uneven roadway caused him to lose control of the motorcycle.

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). Court of Claims Act §10(3) states that a claim be served and filed or a notice of intention for property damage or personal injury be served within 90 days of the date of accrual. If a notice of intention is served upon the Attorney General’s office then claimant must serve and file his claim within 2 years of the date the claim accrued.

In the event a claim is not served and filed or a notice of intention is not served within 90 days of the date of accrual, an application may be made for permission to file a late claim pursuant to Court of Claims Act §10(6). The application must be made before an action asserting a like claim against a citizen of the state would be barred under the provisions of the CPLR. CPLR 214 states that injury to a person or property must be commenced within three years of the date of accrual.

Movants’ cause of action accrued on February 21, 2002. While movants have not been idle and have made inquiries with the NYS Department of Transportation, they have not done anything to toll the statute of limitations. It appears from movants’ papers that a copy of the instant motion was served upon the Attorney General’s Office on April 15, 2005, and subsequently filed in the Clerk’s Office on June 13, 2005. Both of these dates are far outside the statute of limitations date which expired in February 2005.

The remainder of defendant’s opposition is moot.

Based upon the foregoing, movants’ application for permission to file a late claim is denied.


September 8, 2005
Hauppauge, New York

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




[2].The following papers have been read and considered on movants’ motion: Notice of Motion dated April 7, 2005 and filed June 13, 2005 with annexed Exhibits; Defendant’s Memorandum of Law in Opposition to Claimants’ Motion to File a Late Claim dated July 5, 2005 and received July 7, 2005.