New York State Court of Claims

New York State Court of Claims

ABBOTT’S v. THE STATE OF NEW YORK, #2007-009-045, Claim No. 113248, Motion Nos. M-73846, CM-73929


Synopsis


Defendant’s motion to dismiss the claim was granted, based upon untimely service and a jurisdictional defect, in that claimants failed to set forth a “total sum claimed” as required by Court of Claims Act § 11(b). The Court determined that this claim was not affected by the recent amendment to § 11(b) (L2007 ch 606). Claimants’ cross-motion seeking permission to treat their claim as a notice of intention to file a claim was denied.

Case Information

UID:
2007-009-045
Claimant(s):
ABBOTT’S BIG M, INC., and LARRY ABBOTT, Individually and as President of ABBOTT’S BIG M, INC.
Claimant short name:
ABBOTT’S
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113248
Motion number(s):
M-73846
Cross-motion number(s):
CM-73929
Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
COTE, LIMPERT & VAN DYKE, LLC
BY: Theodore H. Limpert, Esq.,Of Counsel.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General
BY: Edward F. McArdle, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
December 20, 2007
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant has brought a motion (M-73846) seeking an order dismissing the claim. Claimants have responded with a cross-motion (CM-73929) not only in opposition to the motion to dismiss, but also seeking permission to treat their claim as a notice of intention to file a claim, and further to treat their amended claim as the actual claim.

The following papers were considered by the Court in connection with these motions:
Notice of Motion, Affirmation of Edward F. McArdle, Esq., Assistant Attorney General, with Exhibits (M-73846) 1,2


Notice of Cross-Motion, Affirmation of Theodore H. Limpert, Esq. (CM-73929) 3,4

Reply of Edward F. McArdle, Esq., Assistant Attorney General 5

In this claim, claimants seek damages for loss of business, income, and customers, as well as damages for business interruption, allegedly caused by the State through its Department of Transportation when it undertook major road construction in the vicinity of Abbott’s Big M between March 2006 and October 2006. The claim is based upon allegations of negligence and carelessness in that the State failed to provide an adequate means of ingress and egress for customers, suppliers or employees of Abbott’s Big M during normal business hours, and that the defendant also obstructed the existing means of ingress and egress.

In its motion (M-73846), defendant seeks dismissal of the claim based upon untimely service, as well as contending that the claim is jurisdictionally defective.

TIMELINESS:

In their claim, claimants allege that the road construction that interfered with their business occurred between the months of March 2006 through October 2006. Based upon the affirmation of defendant’s attorney, the claim was personally served upon the Attorney General on February 16, 2007 (see Exhibit A to Items 1,2), and was filed with the Clerk of the Court of Claims on January 24, 2007. There is no indication that a notice of intention to file a claim was served upon the Attorney General at any point prior to the service of the claim on February 16, 2007.

A claim alleging acts of negligence against the State must be served upon the Attorney General and filed with the Clerk of the Court of Claims within 90 days of accrual, unless a notice of intention to file a claim is served upon the Attorney General within such 90 days. If a notice of intention is properly served upon the Attorney General, the claim must then be served and filed within two years from the date of accrual (Court of Claims Act § 10[3]). These requirements are jurisdictional prerequisites to the institution and maintenance of a claim, and must therefore be strictly construed (Phillips v State of New York, 237 AD2d 590; Byrne v State of New York, 104 AD2d 782, lv denied 64 NY2d 607).

As stated above, there has been no evidence submitted to establish that a notice of intention was timely and properly served upon the Attorney General. Accordingly, in order to be timely, the claim had to be served upon the Attorney General and filed with the Clerk of the Court of Claims within 90 days of accrual. Even if the Court gives claimants every benefit of doubt, the latest possible date of accrual for this claim, according to the allegations set forth therein, is October 31, 2006. Since service of the claim did not occur within 90 days of this date, the claim was not served in a timely manner and is therefore subject to dismissal.

Claimants apparently do not dispute the fact that this claim was not served until February 16, 2007, since in his affirmation in support of the cross-motion herein, claimant’s attorney characterizes this claim as one for intentional and unreasonable interference with the use and enjoyment of land. Claimants therefore contend that the time for service and filing of this claim should be determined not by § 10(3), but rather by Court of Claims Act § 10(4), which provides claimants with six months to file and serve a claim or serve a notice of intention for any action not otherwise specifically provided for in § 10.

Despite their attorney’s characterization of this claim as an “intentional” tort and one based upon “unreasonable interference with the use and enjoyment of land”, there are no such allegations set forth in their claim, nor can this Court impute such a cause of action from the allegations set forth therein. The claim specifically and clearly states that the damages allegedly sustained by claimants were caused “wholly and solely by the negligence and carelessness” of the defendant.

Therefore, based upon its review of the allegations set forth therein, the Court finds that this claim is based upon allegations of negligence and is therefore subject to the filing and service requirements set forth in Court of Claims Act § 10(3). As a result, and as set forth above, the Court finds that this claim was not timely served and is subject to dismissal.

JURISDICTIONAL DEFECT

Additionally, defendant contends that the claim herein is jurisdictionally defective, due to the failure to set forth a “total sum claimed” as required by Court of Claims Act § 11(b). It is readily apparent to the Court that this aspect of defendant’s motion is based upon the recent Court of Appeals decision of Kolnacki v State of New York, (8 NY3d 277), in which that Court held that the failure of a claimant to include the total sum of monetary damages in the claim, as required by Court of Claims Act § 11(b), constituted a jurisdictional defect requiring dismissal of the claim.

The Court notes that while this motion and claimant’s cross-motion were pending, § 11(b) of the Court of Claims Act was amended (L 2007, ch 606). This section now provides that a sum certain is no longer required to be stated in a claim for personal injury, medical, dental, or podiatric malpractice, or in wrongful death suits. This amendment applies to claims pending in the Court of Claims on its effective date (August 15, 2007).

Significantly, however, this amendment to § 11(b) did not eliminate the requirement that a sum certain be stated for all claims brought in the Court of Claims, but only for these specific types of claims set forth above. In other words, a claim other than one for personal injury, medical, dental or podiatric malpractice, or wrongful death must still include the total sum of monetary damages in the claim. Strict compliance with the substantive conditions set forth in Court of Claims Act § 11(b) is required, and the failure to satisfy any one of these requirements constitutes a jurisdictional defect (Lepkowski v State of New York, 1 NY3d 201; Kolnacki v State of New York, supra). Therefore, the failure to include the total sum of monetary damages in this particular claim, which is not based on allegations affected by the recent amendment discussed herein (L 2007, ch 606), constitutes a jurisdictional defect requiring dismissal of the claim.

In an apparent attempt to comply with the Kolnacki holding, claimants filed an amended claim on July 12, 2007, in which this amended claim set forth an amount claimed as damages. This appears to be the only change from the original claim. It is well settled, however, that a defective claim cannot be cured by amendment if that defect is deemed to be jurisdictional (Manshul Constr. Corp. v State Ins. Fund, 118 AD2d 983; Ferrer v State of New York, 172 Misc 2d 1; Grande v State of New York, 160 Misc 2d 383). Accordingly, the Court must therefore find that claimants failed in their attempt to cure this jurisdictional defect when they served and filed their amended claim.

In their cross-motion, claimants’ attorney, in a novel approach, has requested that this Court deem its original claim a notice of intention to file a claim, and to then treat the amended claim as the actual claim, in order to cure any jurisdictional defects.

Claimants not only clearly designated their original claim as a “claim” and not a “notice of intention to file a claim” (and similarly labeled their attempt to amend this claim as an “amended claim”), they also both served and filed this claim, whereas a notice of intention no longer is filed with the Clerk of the Court of Claims (Court of Claims Act § 10[3]; L 1995, ch 466).

The Court further notes that even if it was inclined to deem this claim a notice of intention, it would still be subject to the same defect in timely service as was found by this Court to exist with respect to the original claim.

Accordingly, based upon all of the foregoing, the Court finds and concludes that this claim was not timely served, and that it is also jurisdictionally defective due to the failure to comply with the strict pleading requirements of Court of Claims Act § 11(b). For both of these reasons, this claim must be dismissed.

It does appear to this Court that claimants may have available to them the possibility of late claim relief pursuant to Court of Claims Act § 10(6). Claimants did not seek this relief in their cross-motion, and therefore such an application is not properly before the Court at this time.

Therefore, it is

ORDERED, that Motion No. M-73846 is hereby GRANTED; and it is further

ORDERED, that Cross-Motion No. CM-73929 is hereby DENIED; and it is further

ORDERED, that Claim No. 113248 is hereby DISMISSED.


December 20, 2007
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims