New York State Court of Claims

New York State Court of Claims

GULLA v. THE STATE OF NEW YORK, #2006-010-029, Claim No. NONE, Motion No. M-72058


Synopsis


Claimant’s motion to file late claim is denied.

Case Information

UID:
2006-010-029
Claimant(s):
FRANK J. GULLA
Claimant short name:
GULLA
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-72058
Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant’s attorney:
BRAUNFOTEL & FRENDEL, LLCBy: Scott D. Frendel, Esq.
Defendant’s attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: Dian Kerr McCullough, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 6, 2006
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1-3 were read and considered by the Court on claimant’s motion for leave to serve and file a late claim or to deem the Notice of Intention a claim:
Notice of Motion, Attorney’s Supporting Affirmation, Affidavit and Exhibits.......1

Attorney’s Affirmation in Opposition and Exhibits.................................................2

Attorney’s Reply Affirmation and Exhibit................................................................3

On October 9, 2001, claimant served a Notice of Intention upon defendant which alleged:
“Claim arose on or about July 9, 2001 at approximately 12:02 A.M. on East Route 59 in Spring Valley, NY. The Claimant, FRANK J. GULLA, a police officer, was directing traffic at a fire scene, when he was struck from the rear by a van owned by the State of New York, plate number 991200. The police accident report is attached and forms part of this Notice. Claimant suffered personal injury, when he was struck in the shoulder, back and elbow.”

(Claimant’s Ex. B). The items of damages were specified as:
“Pain and suffering
Physical injury
Possible medical bills
Potential loss of earnings/career”


(id.). A claim was never served and filed in accordance with Court of Claims Act §10(3).

Accordingly, claimant brings the instant motion. The only remedy for which claimant may seek redress under the Court of Claims Act is either under Court of Claims Act §10(6)for leave to serve and file a late claim or, alternatively, under Court of Claims Act §10(8)(a) to deem the notice of intention a claim. Notably, the statute of limitations on the underlying cause of action for personal injuries is three years (CPLR §214[5]) and lapsed on July 9, 2004.

Court of Claims Act § 10(6) provides that a motion for leave to file a late claim, must be brought “before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules” [emphasis added]. Similarly, Court of Claims Act § 10(8)(a) provides in pertinent part: “[t]he court shall not grant such application [permission to treat the notice of intention as a claim] unless : it is made upon motion before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules” [emphasis added]. Claimant’s failure to serve and file his application before the expiration of the statute of limitations precludes the Court from considering the application(see Miller v State of New York, 283 AD2d 830) because “[t]he failure to file such application within the proscribed time period ‘creates a jurisdictional defect and the court is without discretionary power to grant nunc pro tunc relief’ ” (Bergmann v State of New York, 281 AD2d 731, 733).

Accordingly, claimant’s motion is DENIED.


September 6, 2006
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims