New York State Court of Claims

New York State Court of Claims

HAQUE v. THE STATE OF NEW YORK and THE NEW YORK STATE DEPARTMENT OF TRANSPORTATION, COUNTY OF WESTCHESTER and WESTCHESTER COUNTY DEPARTMENT OF TRANSPORTATION, #2006-010-032, Claim No. 111912, Motion No. M-72137


Synopsis


Defendants’ unopposed motion to dismiss is granted on jurisdictional grounds.

Case Information

UID:
2006-010-032
Claimant(s):
AHSAN HAQUE, as Administrator of the Estate of GULZAR BEGUM, Deceased, AHSAN HAQUE, individually, SHAHANA BEGUM, SHAMS HAQUE, NAEEN HAQUE, MUNAZA TARIQ, NASEEM SARWAR, KOUSAR NASEEM and NASEEM AKTER
Claimant short name:
HAQUE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK and THE NEW YORK STATE DEPARTMENT OF TRANSPORTATION, COUNTY OF WESTCHESTER and WESTCHESTER COUNTY DEPARTMENT OF TRANSPORTATION
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111912
Motion number(s):
M-72137
Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant’s attorney:
PHILLIPS, KRANTZ & LEVI, LLPBy: Jeffrey E. Phillips, Esq.
Defendant’s attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: Vincent M. Cascio, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 20, 2006
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read and considered by the Court on defendants’ unopposed motion to dismiss:

Notice of Motion, Attorney’s Supporting Affirmation and Exhibits


Claim No. 111912 arises out of an accident which occurred on June 27, 2003 when Gulzar Begum, a pedestrian, was struck by a motor vehicle on Route 9 in Westchester County. Begum sustained personal injuries and died on June 28, 2003 (Defendants’ Exhibit B). On September 18, 2003[1], the Attorney General’s office received a Notice of Intention captioned as follows:
“AHSAN HAQUE, as proposed Administrator of the Estate of GULZAR BEGUM, AHSAN HAQUE, individually, SHAHANA BEGUM, SHAMS HAQUE, NAEEN HAQUE, MUNAZA TARIQ, NASEEM SARWAR, KOUSAR NASEEM and NASEEM AKHTER
-against-
THE STATE OF NEW YORK, THE NEW YORK STATE DEPARTMENT OF TRANSPORTATION, COUNTY OF WESTCHESTER THE WESTCHESTER COUNTY DEPARTMENT OF TRANSPORTATION, TOWN OF OSSINING and VILLAGE OF OSSINING” (Defendants’ Exhibit A).

The Notice of Intention indicated that claimants would be alleging a claim on behalf of the decedent for the personal injuries sustained and a claim for wrongful death on behalf of the decedent’s children based upon defendants’ ownership, design, maintenance and control of Route 9. On February 2, 2006, the Attorney General’s office received a claim indicating that Haque had been appointed Administrator (Defendants’ Exhibit B). Defendants served an answer specifically raising issues of timeliness.

Court of Claims Act §10(2) provides that a claim for wrongful death shall be served and filed within 90 days after the appointment of an administrator. Here, the claim was received by the attorney general’s office on February 2, 2006, beyond the 90 days after letters were issued on November 1, 2005 (Defendants’ Exhibit B). Court of Claims Act §11 provides that “[s]ervice by certified mail, *** upon the attorney general shall not be complete until the claim or notice of intention is received in the office of the attorney general.” Additionally, the claim for wrongful death was not served and filed within 2 years after the death of the decedent as mandated by Court of Claims Act §10(2) and the claim for personal injuries was not served and filed within 2 years of accrual as mandated by Court of Claims Act §10(3).

The mandates for timely service require strict compliance and are jurisdictional in nature (see Finnerty v New York State Thruway Authority, 75 NY2d 721). The failure to timely commence a claim is a fatal jurisdictional defect requiring dismissal (see Welch v State of New York, 286 AD2d 496, 497). Additionally, as noted by defendants, the statute of limitations on this claim has also lapsed (see EPTL 5-4.1 [wrongful death 2 years]; CPLR 214 [personal injury 3 years]). Thus, the Court would be without discretion to entertain a late claim application (see Court of Claims Act §10[6]).

Accordingly, Defendants’ unopposed motion to dismiss Claim No. 111912 is GRANTED.


November 20, 2006
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims




[1].Claimants assert that the Notice of Intention was served on September 19, 2003 (Exhibit B); however the certified mail receipt indicates September 18, 2003.