New York State Court of Claims

New York State Court of Claims

ANTONECCHIA v. GLENN S. GOORD, Commissioner, NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES and MARY D”SILVA, Individually, #2006-010-030, Claim No. 110718, Motion Nos. M-71185, CM-71416


Synopsis


Claimant’s motion to amend claim and to file late claim denied.

Case Information

UID:
2006-010-030
Claimant(s):
DR. BENEDICT N. ANTONECCHIA
Claimant short name:
ANTONECCHIA
Footnote (claimant name) :

Defendant(s):
GLENN S. GOORD, Commissioner, NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES and MARY D”SILVA, Individually
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110718
Motion number(s):
M-71185
Cross-motion number(s):
CM-71416
Judge:
Terry Jane Ruderman
Claimant’s attorney:
JACOBOWITZ & GUBITS, LLPBy: Joseph R. Ranni, Esq.
Defendant’s attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: Barry Kaufman, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 18, 2006
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1-4 were read and considered by the Court on claimant’s motion for leave to amend his claim and defendants’ cross-motion to dismiss:
Notice of Motion, Attorney’s Supporting Affirmation and Exhibits.......................1

Notice of Cross-Motion, Attorney’s Supporting Affirmation and Exhibits..............2

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

Attorney’s Reply Affirmation and Further Support of Cross-Motion......................4

Claim No. 110718 alleges discrimination and wrongful termination of claimant who was employed by the New York State Department of Correctional Services (DOCS) as a licensed dentist since April 17, 2003 and was allegedly wrongfully terminated on February 3, 2004.
Claimant’s Motion
Claimant moves to amend his claim to assert two more causes of action, i.e., that defendant violated the New York State Human Rights Law (NY Exec Law § 296) and 38 USC §4311 et seg. by engaging in unlawful discrimination practice by terminating claimant due to his military service leave with the New York Air National Guard, where he served as a Medical Group Commander. Claimant seeks an unspecified amount of damages for back pay, loss of pension contributions, loss of promotion and promotional opportunities, loss of benefits, reasonable attorney fees and costs.
Defendants’ Cross Motion
Defendants cross-move to dismiss the claim on the ground that this Court lacks jurisdiction over the claim. As conceded by claimant (Claimant’s Reply, ¶12) and raised in defendants’ answer at ¶10 (Defendants’ Cross-Motion, Ex. 1), neither a claim nor the notice of intention was served upon the office of the Attorney General within 90 days of accrual as required by Court of Claims Act §10(3); §10 (3-b). The requirements of Court of Claims Act §10 are jurisdictional in nature and require strict compliance (see Finnerty v New York State Thruway Auth., 75 NY2d 721; Matter of Welch v State of New York, 71 AD2d 494). Accordingly, Claim No. 110718 warrants dismissal pursuant to CPLR 3211(a)(2) (see Adkison v State of New York, 226 AD2d 409; Hodge v State of New York, 213 AD2d 766). Additionally, this Court does not have jurisdiction over the named individual defendants[1] Glenn S. Goord and Mary D’Silva (see Court of Claims Act §9; Smith v State of New York, 72 AD2d 937; Holmes v State of New York, 5 Misc 3d 446). Thus, the claim also warrants dismissal pursuant to CPLR 3211(a)(8).

Since claimant has failed to properly invoke the jurisdiction of the Court, such defect cannot be cured by an amendment, and therefore, claimant’s motion to amend is DENIED (see Grande v State of New York, 160 Misc 2d 383 [original claim jurisdictionally defective therefore cannot amend it]) and defendant’s cross-motion is GRANTED.

To the extent that claimant seeks leave to serve and file a late claim, he has failed to properly move for such relief and has not submitted a proposed claim to be considered on such application; rather claimant presumably relies upon the proposed amended claim attached as exhibit E to his motion for leave to amend. In any event, claimant has failed to make the requisite showing

sufficient to warrant leave to grant a late claim application. Significantly, claimant has failed to show the appearance of merit of his allegations and repeatedly acknowledges the ability to bring viable claims in Supreme Court by way of a CPLR Article 78 Proceeding which cannot be heard in this Court and must be brought in a Supreme Court action (see Melendez v New York City Hous. Auth., 252 AD2d 437; Claimant’s Reply Affidavit, ¶¶ 4, 22). Accordingly, to the extent claimant seeks leave to serve and file a late claim that application is DENIED (Court of Claims Act, §10[6]).


September 18, 2006
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims




[1].Claimant has not named the State of New York as a defendant nor alleged vicarious liability of the State based upon the official misconduct of the named individuals.