New York State Court of Claims

New York State Court of Claims

BERG v. THE COLLEGE OF STATEN ISLAND FOUNDATION, INC., MARLENE SPRINGER, PRESIDENT OF THE COLLEGE OF STATEN ISLAND, and CITY UNIVERSITY OF NEW YORK, #2006-016-003, Claim No. 107996-A, Motion No. M-70818


Synopsis



Case Information

UID:
2006-016-003
Claimant(s):
JEROME S. BERG
Claimant short name:
BERG
Footnote (claimant name) :

Defendant(s):
THE COLLEGE OF STATEN ISLAND FOUNDATION, INC., MARLENE SPRINGER, PRESIDENT OF THE COLLEGE OF STATEN ISLAND, and CITY UNIVERSITY OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107996-A
Motion number(s):
M-70818
Cross-motion number(s):

Judge:
Alan C. Marin
Claimant's attorney:
Passarello & LaRosaBy: John A. Passarello, Jr., Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Gail Pierce-Siponen, Esq., AAG
Third-party defendant's attorney:

Signature date:
January 17, 2006
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

This is defendant City University of New York's motion to dismiss the claim of Jerome S. Berg, which alleges breach of contract, fraud and misrepresentation by defendants in connection with donations made by Mr. Berg between 1992 and 1995. On or about July 31, 2003, claimant sued defendants in Supreme Court, Richmond County. Defendants moved to dismiss there, and in an order entered February 3, 2005, the Hon. Philip G. Minardo directed "that the complaint and entire file as against Marlene Springer and City University of New York is transferred to the N.Y.S. Court of Claims in New York County pursuant to CPLR §325(a)." See exhibit A to defendant's moving papers.

Defendants then moved to reargue and in a "Decision/Order" dated July 7, 2005, Judge Minardo stated in relevant part that:
. . . This Court's prior order transferring the action against CUNY and Springer to the Court of Claims was based on improper venue, pursuant to the CPLR §325(a). Lawsuits against CUNY and its affiliates must be brought in the Court of Claims pursuant to Education Law §6224 (4).
. . .
The Court of Claims would normally have jurisdiction in this matter, however since plaintiff has failed to comply with the Court of Claims Act §§ 10 and 11 in failing to serve the Attorney General's Office and CUNY with a notice of intention or claim and has failed to timely file the claim with the Clerk of the Court of Claims, the Court of Claims is deprived of subject matter jurisdiction and therefore the matter against CUNY must be dismissed.


See exhibit A to claimant's "Reply Affidavit."

This Court has no jurisdiction over defendants the College of Staten Island Foundation, Inc. and Marlene Springer.[1] As to the City University of New York, claimant failed to comply with §§10 and 11 of the Court of Claims Act in that he did not file a claim with the Clerk of the Court of Claims, nor did he serve a claim (or a notice of intention followed by service of a claim) on the City University[2] or the Office of the Attorney General. Such service and filing requirements are jurisdictional in nature. See, e.g., Byrne v State of New York, 104 AD2d 782, 783, 480 NYS2d 225, 227 (2d Dept 1984), lv denied, 64 NY2d 607, 488 NYS2d 1023 (1985). See also Mallory v State of New York, 196 AD2d 925, 601 NYS2d 972 (3d Dept 1993).

In view of the foregoing, having reviewed the submissions[3], IT IS ORDERED that motion no. M-70818 be granted and claim no. 107996-A be dismissed as against all defendants.

January 17, 2006
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [1]The Court of Claims Act only grants this court jurisdiction over specified suits against the State of New York. A small number of other public entities are subject to the jurisdiction of the Court of Claims via explicit statutory authority, for example, the New York State Thruway Authority by Public Authorities Law §361-b. There is no such authority as to Springer or the foundation.
  2. [2]The complaint from the Supreme Court action was served on the City University on July 3, 2003, but was not served on the Attorney General.
  3. [3]The Court reviewed: defendant City University of New York's notice of motion to dismiss with affirmation in support and exhibits A through D; claimant's "Reply Affidavit" with exhibits A and B; and defendant City University of New York's reply affirmation with exhibit A.