New York State Court of Claims

New York State Court of Claims

GREENE v. THE STATE OF NEW YORK, #2006-016-043, Claim No. 111808, Motion No. M-71357


Synopsis


Motion to dismiss based on the failure to timely serve by certified mail, return receipt requested a claim permitted pursuant to a late claim motion was denied.

Case Information

UID:
2006-016-043
Claimant(s):
MERVYN GREENE
1 1.The caption has been amended to reflect that the sole property party is the State of New York.
Claimant short name:
GREENE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended to reflect that the sole property party is the State of New York.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111808
Motion number(s):
M-71357
Cross-motion number(s):

Judge:
Alan C. Marin
Claimant’s attorney:
Ornstein & Ornstein, P.C.By: Anthony T. Santora, Esq.
Defendant’s attorney:
Eliot Spitzer, Attorney GeneralBy: Ellen Matowik Russell, Esq., AAG
Third-party defendant’s attorney:

Signature date:
June 5, 2006
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is defendant’s motion to dismiss the claim of Mervyn Greene, in which Mr. Greene alleges that he tripped and fell on a defective sidewalk outside the State University of New York Health Science Center in Brooklyn. Previously, Greene made a motion for permission to file a late claim (motion no. M-70470), which was granted in a December 5, 2005 Decision and Order. Such directed that within 45 days of its filing, claimant was to “serve and file his proposed claim . . . and otherwise comply with §§11 and 11-a of the Court of Claims Act.” Section 11.a of the Court of Claims Act (the “Act”) provides that a claim must be served either personally or by certified mail, return receipt requested.

In the instant case, Greene served his claim on January 9, 2006, i.e., within 45 days of the December 14, 2005 filing date of the Decision and Order, but did so by regular mail, a method not authorized by §11.a of the Act. On February 7, 2006, claimant re-served his claim by certified mail, return receipt requested, but such was done ten days after the expiration of the 45-day period set forth in the Decision and Order.

While it is undisputed that the claim was not properly served until after the expiration of the 45-day period directed by the Court, such is not a jurisdictional defect. See, e.g., Shimmerlik v City University of New York, 142 Misc 2d 118, 536 NYS2d 380 (Ct Cl 1988), affd 154 AD2d 959, 546 NYS2d 506 (1st Dept. 1989); Kerai v State of New York, Ct Cl filed June 8, 2000 (unreported, claim no. 93387, motion nos. M-60851 and CM-61020, Marin, J.). See also Griffin v John Jay College, 266 AD2d 16, 697 NYS2d 278 (1st Dept 1999), in which the Appellate Division, noting that defendant had shown no prejudice, ruled that it was improper for the court to deny claimant’s second application for an extension of time to file her claim pursuant to a late claim motion order.

Accordingly, having reviewed the submissions[2], IT IS ORDERED that motion no. M-71357 be denied and that the service of claim no. 111808 by certified mail, return receipt requested on February 7, 2006 be deemed timely pursuant to this Court’s Decision and Order dated December 5, 2005 and filed December 14, 2005.


June 5, 2006
New York, New York

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




[2].The following were reviewed: defendant’s notice of motion with affirmation in support and exhibits A through C; claimant’s affirmation in opposition; and defendant’s reply affirmation.