New York State Court of Claims

New York State Court of Claims

O’NEIL v. NEW YORK STATE DEPT. OF TRANSPORTATION, #2007-038-518, , Motion No. M-72733


Synopsis


Motion to file late claim denied as untimely. Latest statute of limitations in CPLR article 2 expired in 1990

Case Information

UID:
2007-038-518
Claimant(s):
AIMEE O’NEIL
Claimant short name:
O’NEIL
Footnote (claimant name) :

Defendant(s):
NEW YORK STATE DEPT. OF TRANSPORTATION
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
M-72733
Cross-motion number(s):

Judge:
W. BROOKS DEBOW
Claimant’s attorney:
AIMEE O’NEIL, Pro Se
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Ellen Matowik Russell, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 30, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

This motion for permission to file a late claim must be denied because it is untimely. A motion to file a late claim must be filed “before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules” (Court of Claims Act § 10 [6]). The failure to file the motion within the prescribed time period is a jurisdictional defect which precludes the court from granting such a motion (see Matter of Miller v State of New York, 283 AD2d 830, 831 [3d Dept 2001]; Bergmann v State of New York, 281 AD2d 731, 733-734 [3d Dept 2001]; Williams v State of New York, 235 AD2d 776, 777 [3d Dept 1997], lv denied 90 NY2d 806 [1997]). Claimant seeks damages for personal injury and property loss arising from an incident that occurred at John F. Kennedy International Airport in September of 1983. The instant motion was not made until December 2006, more than twenty-three years later.

The longest applicable statute of limitations based upon the allegations of the proposed claim is three years (see CPLR 214). As the claim accrued in 1983, the statute of limitations expired in 1986. Considering whether claimant is to be given the benefit of an infancy toll of the statute of limitations, it is noted that claimant was alive in March 1969.[1] Accordingly, the infancy toll for this claim expired no later than March 1987 (see CPLR 105 [j] [legal infancy ends upon attainment of the age of eighteen]), and the statute of limitations expired three years thereafter (see CPLR 208), or in March 1990. As this motion for permission to file and serve a late claim was not filed until December 2006, it comes before the Court beyond the expiration of the applicable statute of limitations, and its merits cannot be considered.

Motion No. M-72733 is DENIED.


March 30, 2007
Albany, New York

HON. W. BROOKS DEBOW
Judge of the Court of Claims



Papers considered:


(1) Notice of Motion, dated December 20, 2006;

(2) Proposed Claim, verified December 20, 2006;

(3) Affirmation in Opposition to Motion to File a Late Claim of Ellen Matowik Russell, AAG, dated January 12, 2007, with exhibit A;

(4) Verified Proposed Claim, Motion No. M-72764.



[1]. In the verified proposed claim submitted in support of an unrelated motion for permission to file a late claim that was filed in December 2006, claimant recites events that occurred during her infancy in March 1969 (see Motion No. M-72764).