New York State Court of Claims


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New York State Court of Claims

EAST HOOK v. THE NEW YORK STATE THRUWAY AUTHORITY, #2007-030-565, Claim No. 111173, Motion No. M-73578


Synopsis


Claimant’s motion to “place” the matter on the trial calendar denied. No note of issue/certificate of readiness was served and filed. Claim alleges that the defendant New York State Thruway Authority contaminated claimant’s water well damaging claimant in an amount greater than one million ($1,000,000.00) dollars. No date of accrual is alleged other than the statement that “this claim is filed within the time constraints set forth in the Court of Claims Act,” claim served regular mail on NYSTA. Claimant would appear to be seeking a declaration of a sorts that the defenses are ill-founded, but has not made a motion to strike the defenses which would be the mechanism for trying to eliminate duly raised defenses in the answer. It also arguably appears that this is a jurisdictionally defective claim subject to dismissal before the Court, yet defendant’s counsel has not made a motion to dismiss, instead noting that defendant “stands by all of the defenses raised in our answer.”

Case Information

UID:
2007-030-565
Claimant(s):
EAST HOOK SPORTSMEN ASSOCIATION, INC.
Claimant short name:
EAST HOOK
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111173
Motion number(s):
M-73578
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
EDWARD T, McCORMACK, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: DEWEY LEE, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
September 18, 2007
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers were read and considered on claimant’s motion to “place” the


matter on the trial calendar:

1,2 Notice of Motion; Affirmation in Support by Edward T. McCormack, counsel for claimant and attached papers

  1. Affirmation by Dewey Lee, Assistant Attorney General
4,5 Filed papers: Claim, Answer

The claim herein, filed on July 25, 2005, alleges that the defendant New York State Thruway Authority (NYSTA) contaminated claimant’s water well damaging claimant in an amount greater than one million ($1,000,000.00) dollars. No date of accrual is alleged other than the statement that “this claim is filed within the time constraints set forth in the Court of Claims Act.” The claim is signed by the secretary of the claimant organization, Harry J. Lynch, and is verified. See Civil Practice Law and Rules §3021.

The affidavit of service appears to indicate that the claim was served personally on an assistant attorney general, however there is no indication that the NYSTA was served as well, although in the answer the defendant indicates that the agency received a copy but it was not served by the proper means since it was served by regular mail.[1] Additionally, the claim was returned to the claimant’s attorney twice as a nullity, pursuant to Civil Practice Law and Rules §3022. Thereafter, however, the claim was served on the Attorney General’s Office and not returned, on or about June 29, 2005. [See Affirmation by Dewey Lee, Assistant Attorney General, ¶3]. There is no acknowledgment that the NYSTA was ever served properly. The answer was filed August 1, 2005, and raised several defenses, including both a lack of personal and subject matter jurisdiction, and failure to comply with the pleading requirements of Court of Claims Act §11(b).

At a calendar call held on February 7, 2007, held shortly after the matter had been transferred to this court[2], claimant’s attorney was instructed to proceed by motion with his request “for an extension to file my notice of claim verified since it didn’t meet the requirements of §3012 (sic) of the CPLR.”[3] There was some colloquy to the effect that the defendant would “oppose any application”, and that the defendant “would stand by its objections.”

The present motion, marked for submission on July 18, 2007, is apparently in response to the calendar conference in February 2007.

Counsel for claimant asks that the matter be placed on the trial calendar, since all discovery is complete, and then states:
“5. The Claimant has served verified Notices of Claim upon the Respondent State of New York. Affidavit of Service and correspondence is attached.
6. The Respondent (sic) avers that it has not been properly served.
7. The correspondence and Affidavit of Service meet with the requirements of the Court of Claims Act and the Claimant states readiness for trial.”


[See Affirmation in Support by Edward T. McCormack, Counsel for Claimant].


In a three paragraph Affirmation opposing this motion, the Assistant Attorney General describes claimant’s present application somewhat accurately as one seeking an order “finding that defendant was ‘properly served,’ that the claimant has met ‘the requirements of the Court of Claims Act’, and that the case be placed on the trial calendar.” [See Affirmation by Dewey Lee, Assistant Attorney General, ¶2]. He then goes on to write:
3. We raised a number of defenses, with particularity, in our answer dated July 28, 2005. As we stated in our answer, our office was served with a claim on June 29, 2005 - - that claim was not rejected by our office. We also acknowledge that the Thruway Authority received a claim by regular mail addressed to someone unauthorized to receive service, sometime after July 5, 2005 and before July 8, 2005. If claimant is merely asserting that the claim was received on those dates, then we have no issue with those propositions. However, we stand by all of the defenses raised in our answer.”


[See ibid. ¶3].

The court is somewhat perplexed by the respective postures taken by counsel. On the one hand, claimant would appear to be seeking a declaration of a sorts that the defenses are ill-founded, but has not made a motion to strike the defenses which would be the mechanism for trying to eliminate duly raised defenses in the answer. See Court of Claims Act §9(9)[4]; Civil Practice Law and Rules §3211(b). Similarly, rather than file a note of issue and certificate of readiness to trigger “placement on the trial calendar”, claimant brings the present application. [See 22 NYCRR §206.12].

Additionally, it would arguably appear that this is a jurisdictionally defective claim subject to dismissal before the Court, yet claimant’s counsel has not sought permission to serve and file a late claim [see Court of Claims Act §10(6)] - although it does not seem likely that such application would be timely at this juncture - nor has defendant’s counsel made a motion to dismiss, instead noting that defendant “stands by all of the defenses raised in our answer.” Civil Practice Law and Rules §3211(a).

The most accurate statements in the papers submitted by both would be that issue has been joined, in that a claim (arguably subject to dismissal) has been (kind of) served, that an answer has been served in response raising certain defenses, and that there has been discovery. Otherwise, there is no application of merit to consider based on the papers submitted.

Motion number M-73578 is in all respects denied.

September 18, 2007
White Plains, New York

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




[1].The Court of Claims has exclusive jurisdiction to hear and determine claims against the NYSTA. Public Authorities Law § 361-b. Claims against the NYSTA must be served on both the agency, and the Attorney General’s Office, either personally, or by certified mail, return receipt requested within the applicable time constraints. Court of Claims Act §§10 and 11(a) (ii).
[2]. (Sise, P.J., January 11, 2007).
[3]. Quotations are from the audio recording made of the calendar call held on February 7, 2007, unless otherwise indicated.
[4]. “. . . except as otherwise provided by this act or by rules of this court or the civil practice law and rules, the practice shall be the same as in the supreme court.”