New York State Court of Claims

New York State Court of Claims

KITTELSTAD v. THE STATE OF NEW YORK, #2007-010-006, Claim No. 112004, Motion Nos. M-72540, CM-72736


Synopsis


Defendant’s motion to dismiss is granted, untimely service and claimants’ cross-motion for leave to serve and file a late claim is denied, did not demonstrate appearance of merit.

Case Information

UID:
2007-010-006
Claimant(s):
ROBERT KITTELSTAD AND ARLENE KITTELSTAD
Claimant short name:
KITTELSTAD
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112004
Motion number(s):
M-72540
Cross-motion number(s):
CM-72736
Judge:
Terry Jane Ruderman
Claimant’s attorney:
CALANO & CULHANE, LLPBy: Edward A. Frey, Esq.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General for the State of New York
By: Rubin, Fiorella & Friedman, LLPTracey Mapou, Esq., Of Counsel
Third-party defendant’s attorney:

Signature date:
February 1, 2007
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers numbered 1-3 were read and considered by the Court on defendant’s motion to dismiss and claimants’ cross-motion for leave to serve and file a late claim:
Notice of Motion, Supporting Affirmations and Exhibits.......................................1

Notice of Cross-Motion, Supporting Affirmation and Exhibit.................................2

Reply Affirmation.......................................................................................................3
Defendant’s Motion To Dismiss
Defendant moves to dismiss Claim No. 112004 based upon untimely service. On May 25, 2004, a Notice of Intention to File Claim was personally served upon defendant (Defendant’s Ex. B). The Notice of Intention alleged that Robert Kittelstad was injured in the course of his employment at a construction site on February 25, 2004 when he fell approximately 10 feet from a duct unit upon which he had been working. The claim of Arlene Kittelstad is derivative. A claim was filed with the Clerk of the Court on February 22, 2006 (Claimants’ Ex. A). On March 1, 2006, a claim was received by the Office of the Attorney General (Defendant’s Ex. C). By answer dated May 5, 2006, defendant raised the affirmative defense of lack of jurisdiction based upon claimants’ failure to serve the claim upon the Office of the Attorney General as statutorily mandated within two years of the accrual date (Defendant’s Ex. D at ¶14).

Court of Claims Act §10(3) provides that a claim to recover damages for personal injuries caused by negligence shall be filed and served within 90 days of accrual, unless within such time a notice of intention is served upon the Attorney General, in such case a claim shall be filed and served within two years of accrual. Court of Claims Act §11(a) provides that service is complete upon receipt in the Office of the Attorney General. The requirements of Court of Claims Act §10 are jurisdictional in nature and require strict compliance (see Finnerty v New York State Thruway Auth., 75 NY2d 721; Matter of Welch v State of New York, 71 AD2d 494). Accordingly, Claim No. 112004 warrants dismissal pursuant to CPLR 3211(a)(2) (see Adkison v State of New York, 226 AD2d 409; Hodge v State of New York, 213 AD2d 766).

Defendant’s motion to dismiss is GRANTED.
Claimants’ Cross-Motion
Claimants’ papers are termed a cross-motion for leave to serve and file a late claim; however claimants’ fail to cite to the appropriate authority for such application, i.e., Court of Claims Act §10(6). Rather, claimants cite to Court of Claims Act §10(e), a non-existent sub-section. Further, and most significantly, claimants do not set forth any of the necessary factors which the Court must consider before granting a late claim application. Indeed, unlike a party who has timely filed a claim, a party seeking to file a late claim has the heavier burden of demonstrating that the proposed claim appears to be meritorious (see Nyberg v State of New York, 154 Misc 2d 199; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). “A general allegation of negligence on the part of the State is insufficient to establish a meritorious cause of action” (Witko v State of New York, 212 AD2d 889, 891). Claimants have done nothing to demonstrate the appearance of merit of their claim. Essentially, claimants concede that they failed to comply with the statutory mandates for service which requires receipt of the claim in the Office of the Attorney General within two years of the accrual date; nonetheless, claimants argue that they mailed the claim return receipt requested on February 21, 2006. This is of no moment since the statute clearly provides that service is complete upon receipt and not upon mailing (Court of Claims Act §11[a]). As noted in defendant’s motion to dismiss, the time provisions set forth in the Court of Claims Act are jurisdictional[1] in nature and must be strictly construed.

Accordingly, claimants’ cross-motion is DENIED.


February 1, 2007
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims




[1]. Curiously, claimants have been on notice of this jurisdictional defect since May of 2006 and yet failed to make a late claim application until faced with a motion to dismiss.