New York State Court of Claims

New York State Court of Claims

ELDERKIN v. THE STATE OF NEW YORK, #2007-037-026, Claim No. 109714, Motion No. M-73244


Synopsis


Claim dismissed. Claimant failed to prove that he served either a notice of intention to file a claim or a claim within 90 days of accrual of the claim.

Case Information

UID:
2007-037-026
Claimant(s):
MERLE J. ELDERKIN
1 1.The caption has been amended sua sponte to reflect that the only proper Defendant is the State of New York.
Claimant short name:
ELDERKIN
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended sua sponte to reflect that the only proper Defendant is the State of New York.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109714
Motion number(s):
M-73244
Cross-motion number(s):

Judge:
JEREMIAH J. MORIARTY III
Claimant’s attorney:
The Westman Law FirmJames E. Westman, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo
New York State Attorney General
By: William D. Lonergan, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 18, 2007
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following were read and considered with respect to Defendant’s motion to dismiss the claim for lack of jurisdiction:
1. Notice of motion and supporting affidavit of Assistant Attorney General William D.

Lonergan, sworn to April 18, 2007, with annexed Exhibits A-C;

2. Supporting affidavit of Janet A. Barringer, sworn to March 28, 2007, with annexed

Exhibit A;

3. Responding affirmation of James E. Westman, Esq., dated June 13,2007.[2]


Filed papers: Claim filed August 11, 2004, Answer filed September 9, 2004.

According to the claim (Defendant’s Exhibit A), on January 19, 2004, New York State Police negligently permitted Claimant’s daughter to retrieve cattle from Claimant’s property without proper authorization. The claim was filed on August 11, 2004 and served on the Buffalo Regional Office of the Attorney General on August 13, 2004 (Defendant’s Exhibit B). On September 9, 2004, Defendant filed its answer in which it preserved the affirmative defense of untimely service with sufficient specificity as required by § 11 (c) of the Court of Claims Act (Fifth Affirmative Defense, Defendant’s Exhibit C).

Pursuant to § 10 (3) of the Court of Claims Act, a negligence claim must be filed and served upon the Attorney General within 90 days of accrual unless the Claimant serves upon the Attorney General a notice of intention to file a claim within the same 90-day period of time, in which event the claim must be filed and served within two years of accrual of the claim. The claim herein was filed and served in August of 2004, more than 90 days after the claim’s accrual date of January 19, 2004. The filing and service requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Finnerty v New York State Thruway Authority, 75 NY2d 721, 723 [1989]). This claim would, therefore, have to be dismissed unless Claimant served a notice of intention to file a claim upon the Attorney General within 90 days of January 19, 2004, effectively extending Claimant’s time to file and serve the claim.

According to the claim, Claimant served the Attorney General with a notice of intention to file a claim on April 14, 2004,[3] within 90 days of accrual of the claim. A notice of intention, like a claim, must be served personally or by certified mail, return receipt requested (Martinez v State of New York, 282 AD2d 580 [2001], lv denied 96 NY2d 720 [2001]; Hodge v State of New York, 213 AD2d 766 [1995], appeal dismissed 87 NY2d 968 [1996]). Service of a notice of intention by any other means is insufficient to confer jurisdiction or to extend Claimant’s time to file and serve his claim (Edens v State of New York, 259 AD2d 729 [1999]; Bogel v State of New York, 175 AD2d 493 [1991]).

Defendant attaches to its motion, an affidavit by Janet A. Barringer, Senior Clerk in the Albany, New York office of the Attorney General, who is familiar with its records. According to Ms. Barringer, a thorough search of the records in the Attorney General’s Office was made by Claimant’s name and by the incident date of January 14, 2004, and no record was found indicating that a notice of intention was received by the office of the Attorney General.

Claimant has the burden of establishing proper and timely service (see generally Boudreau v Ivanov, 154 AD2d 638, 639 [1989]; Gagne v State of New York, 14 Misc 3d 1214(A) [2006]). Here, Claimant has failed to come forward with an affidavit of personal service or to produce the green return receipt card which would have been signed by a representative of the Attorney General’s Office if service of a notice of intention had been properly effected within 90 days of accrual of the claim as alleged by Claimant in his claim. The Court is satisfied that no notice of intention to file a claim was served on the Attorney General and, thus, Claimant is not entitled to an extension of the 90-day statutory period within which to file and serve a claim.

In the responding affirmation, Claimant’s counsel alleges that he was not the original attorney for Claimant when this matter accrued. This is the same argument made by Claimant’s counsel in support of Claimant’s prior motion brought pursuant to CPLR § 2004 for an extension of time to pay the filing fee. At that time, Presiding Judge Sise noted that nowhere in the Court’s file was there any indication that any attorney other than Attorney Westman had appeared on behalf of Claimant (Elderkin v State of New York, Ct Cl, June 22, 2005, Sise, P. J., Claim No. 109714, Motion No. M-69870, UID # 2005-028-537). For purposes of this motion, however, it does not matter if Claimant was represented by counsel or was proceeding pro se at the time the claim accrued. He still was required by § 10 (3) of the Court of Claims Act to file and serve a claim or to serve a notice of intention to file a claim within 90 days of accrual of the claim.

Counsel’s further argument that the purpose of the 90-day statutory period is to give the State a reasonable opportunity to investigate is similarly unavailing. The State’s waiver of sovereign immunity is conditioned upon a claimant’s compliance with the filing and service requirements of the Court of Claims Act (Alston v State of New York, 97 NY2d 159 [2001]). The failure to comply with these requirements is a jurisdictional defect compelling the dismissal of the claim (Ivy v State of New York, 27 AD3d 1190 [2006]). Accordingly, it is hereby

ORDERED, that Defendant’s motion no. M-73244 to dismiss the claim is granted, and it is further

ORDERED, that claim no. 109714 is dismissed.

The Clerk of the Court is directed to close the file.



June 18, 2007
Buffalo, New York

HON. JEREMIAH J. MORIARTY III
Judge of the Court of Claims




[2]. Defendant’s motion papers requested that all answering affidavits be served no later than five days prior to the return date of this motion (CPLR 2214). The responding affirmation of Claimant’s attorney was faxed to Chambers on the return date of the motion. The Court has, however, read and considered this affirmation.
[3]. An incomplete copy of the claim is annexed to Defendant’s motion papers as Exhibit A. Apparently, the person copying the claim for attachment to the motion papers neglected to copy the back side of the first page of the claim. Fortunately, the Court has a complete copy of the claim as filed. On the back of the first page of the claim it is alleged that a notice of intention to file a claim was served on the Attorney General on April 14, 2004. Defendant does not argue that the Claimant did not allege service of a notice of intention in his claim. Rather, Defendant argues that it never received a notice of intention.