New York State Court of Claims

New York State Court of Claims

SHARP v. THE STATE OF NEW YORK, #2007-030-501, Claim No. 111101, Motion No. M-72009


Synopsis


As provided in the Court’s prior Order, individual Claimant’s failure to move to discharge her attorney or to appear by attorney or pro se and respond to the motion to dismiss within time frame provided will result in a default and dismissal of the claim on that basis alone. Additionally, Defendant’s motion to dismiss premised upon the Claimant’s failure to timely serve the claim is granted. Claimants allege that the New York State Office of Court Administration violated fiduciary and administrative duties owed to claimants by allowing actions by receivers appointed in at least one Supreme Court proceeding to “go unchecked” thereby damaging Claimants’ property. Damage is alleged to have commenced on March 11, 2003, although a date of accrual of June 30, 2005 is set forth at paragraph 4 of the Claim. The Claim was served on the Office of the Attorney General by certified mail, return receipt requested, on August 4, 2005. No Notice of Intention ever served. If a “continuing violation” were made out, the limitations period may be tolled, and accrual is then measured from the last wrongful act. Here, it is the continuing effect of allegedly unlawful prior conduct that is alleged, as opposed to continuing unlawful conduct, the tolling does not occur.

Case Information

UID:
2007-030-501
Claimant(s):
SHARP REALTY, LLC as represented by LINDA SHARP ACTIVE MEMBER
1 1.The caption has been amended to reflect the only proper defendant.
Claimant short name:
SHARP
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111101
Motion number(s):
M-72009
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
LINDA SHARP, PRO SE
Defendant’s attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERAL
BY: JOSEPH PATERNO, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
January 2, 2007
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers were read and considered on Defendant’s motion to dismiss the


within claim:

1,2 Notice of Motion; Affirmation in Support by Joseph Paterno, Assistant Attorney General and attached exhibits

  1. “So Ordered” Daily Report dated October 24, 2006
4,5 Filed Papers: Claim, Answer

No Opposition Filed


Claimant alleges that the New York State Office of Court Administration violated fiduciary and administrative duties owed to claimant by allowing actions by receivers appointed in at least one Supreme Court proceeding to “be unchecked” thereby damaging Claimant’s property. [Claim Number 111101, ¶2]. Damage is alleged to have commenced on March 11, 2003, although a date of accrual of June 30, 2005 is set forth at paragraph 4 of the Claim. Ms. Sharp, the individual signing the claim who indicates she is the “sole active member” of Sharp Realty LLC in the caption, further notes in the body of the claim that various court appointees did not pay mortgage bills or properly distribute rent monies resulting in damage. The Claim was served on the Office of the Attorney General by certified mail, return receipt requested, on August 4, 2005. [Affirmation in Support, ¶3]. No Notice of Intention was ever served upon the Attorney General’s Office. [id.]. In its Answer, in addition to general denials, Defendant asserts ten (10) affirmative defenses, including its fourth affirmative defense that this Court lacks jurisdiction over the claim since the claim was not timely served. [See id.].

Defendant now moves to dismiss the claim based upon its fourth affirmative defense, that the claim was not timely served. A claim, or a Notice of Intention, must be served within ninety (90) days of its accrual. Court of Claims Act §10(3). A claim accrues under the Court of Claims Act when damages are “reasonably ascertainable.” See Augat v State of New York, 244 AD2d 835, 836 (3d Dept 1997), lv denied, 91 NY2d 814 (1998); Watson v State of New York, ___AD2d___, 2006 WL 3627153 (3d Dept 2006). If a “continuing violation” is made out, the limitations period may be tolled, and accrual is then measured from the “. . . last wrongful act

. . . ” Watson v State of New York, supra. Where, as here, it is the continuing effect of allegedly unlawful prior conduct that is alleged, as opposed to continuing unlawful conduct, the tolling does not occur. [id.]; see also Bullard v State of New York, 307 AD2d 676 (3d Dept 2003). It is difficult to determine exactly how and when the State of New York has breached any duty to claimant based upon the pleading itself in any event.

No response to the motion has been submitted either by a new attorney of record or by the Claimant appearing pro se, within sixty (60) days of October 24, 2006, nor has a motion to discharge the former attorney of record been made within thirty (30) days of October 24, 2006. [See “So Ordered” Daily Report dated October 24, 2006]. As provided in the Court’s prior Order, Ms. Sharp’s failure to move to discharge her attorney or to appear by attorney or pro se and respond to the motion within the aforementioned time frames will result in a default and dismissal of the claim on that basis alone. [id.].

Additionally, Defendant’s motion to dismiss premised upon the Claimant’s failure to timely serve the claim is granted [M-72009] since the claim was not served within ninety (90) days of its accrual.

Accordingly, Claim number 111101 is in all respects dismissed, based both upon noncompliance with a prior Order and default, and for failure to timely serve the claim.

January 2, 2007
White Plains, New York

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