New York State Court of Claims

New York State Court of Claims

ALLSTATE v. NEW YORK STATE THRUWAY AUTHORITY, #2006-030-560, Claim No. 112093, Motion No. M-71564


Synopsis



Case Information

UID:
2006-030-560
Claimant(s):
ALLSTATE INSURANCE COMPANY, A/S/O ROY ZYLA
Claimant short name:
ALLSTATE
Footnote (claimant name) :

Defendant(s):
NEW YORK STATE THRUWAY AUTHORITY
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112093
Motion number(s):
M-71564
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
CARL S. YOUNG & ASSOCIATESBY: DAVID M. BERKLEY, ESQ.
Defendant’s attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERAL
BY: VINCENT M. CASCIO, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
August 4, 2006
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1 to 6 were read and considered on Defendant’s motion


to dismiss the within claim:

1,2 Notice of Motion, Affirmation by Vincent M. Cascio, Assistant Attorney General and attached exhibits

  1. Affirmation in Opposition by David M. Berkley, Attorney for Claimant
  1. Reply Affirmation by Vincent M. Cascio, Assistant Attorney General
5,6 Filed papers: Decision and Order, Allstate Insurance Company A/S/O Roy Zyla v New York State Thruway Authority, Claim No. None; Motion No. M-70578 (November 30, 2005, Scuccimarra, J.); Claim No. 112093

In a Decision and Order filed November 30, 2005, Claimant was granted permission to serve and file a late claim that had accrued on January 27, 2004, alleging property loss as the result of a motor vehicle accident, provided that the proposed claim was properly served and filed within thirty (30) days of the filing date of the Decision and Order granting the relief. The present claim was filed in the Office of the Chief Clerk of the Court of Claims on March 17, 2006. According to the Affidavit of Service filed with the claim, it was mailed by certified mail, return receipt requested to the Attorney General’s Office and to the New York State Thruway Authority on March 13, 2006. Defendant indicates that service was completed on March 16, 2006.[1] Accordingly, Claimant did not comply with the Order of this Court.

The Defendant now moves to dismiss the claim because Claimant failed to comply with the Court’s Order directing service and filing of the proposed claim within thirty (30) days of the filing of the Decision and Order granting late claim relief. Claimant’s attorney states in a two (2) page affirmation that does not cite any legal authority: “The delay in serving and filing the Claim within the time required was due only to unintentional inadvertance. The proposed claim had been annexed . . . to the moving papers that were served on the Court and the attorney general. It has been our experience in other instances where applications were made for leave to file late claims or notices of claims[2], that courts have often granted such leave, nunc pro tunc, without the requirement for filing of a new claim. The paralegal handling this case believed it to be true . . . Upon my review of the file on or about March 16, 2006 . . . I noticed that the direction for serving and filing were not complied with. We immediately served and filed the Claim.” [Affirmation in Opposition by David M. Berkley, ¶¶ 5 and 6]. He then indicates that the Defendant does not claim any prejudice. [ibid. ¶7].

Counsel for Claimant is not persuasive. Counsel has failed to comply with the conditions required to give this Court jurisdiction over an otherwise untimely served and filed claim. No cross-motion is before the Court seeking appropriate relief, such as, for example, yet another application for permission to serve and file a late claim pursuant to Court of Claims Act §10(6).[3] Instead, Counsel blames his office and reveals his own failure to, at a minimum, read the Court of Claims Act and the attendant Rules of the Court, as well as the applicable case law.

The motion to dismiss [M-71564] is granted, and claim number 112093 is dismissed in its entirety.



August 4, 2006
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1].Service upon the Attorney General is complete upon receipt. Court of Claims Act §11 (a)(i).
[2]. In the Court of Claims, there is no application to serve a late “notice of claim.”
[3]. Assuming a date of accrual of January 27, 2004, the statute of limitations for late claim motion purposes has not yet expired [See Court of Claims Act §10(6); Civil Practice Law and Rules §214]. Claimant may still attempt to seek permission to serve and file a late claim. Cf. Crum & Foster Ins. Co. v State of New York, 25 AD3d 643 (2d Dept 2006).