New York State Court of Claims

New York State Court of Claims

JORDAN v. THE STATE OF NEW YORK,


NEW YORK STATE DEPARTMENT OF TRANSPORTATION, #2007-042-500, Claim No. 113012, Motion Nos. M-72643, CM-73027


Synopsis


Defendants brought this pre-answer motion to dismiss claim pursuant to CPLR Rule 3211 (a) (2) and (8) on the grounds that the Court lacks subject matter jurisdiction and/or personal jurisdiction over the defendants. Defendants’ motion to dismiss the claim is granted. Claimant cross-moves for permission to file a late claim, pursuant to Court of Claims Act Section 10 (6). Claimant’s cross-motion is granted.

Case Information

UID:
2007-042-500
Claimant(s):
DENISE L. JORDAN
Claimant short name:
JORDAN
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK,NEW YORK STATE DEPARTMENT OF TRANSPORTATION1 1.While the caption names both the State of New York and the New York State Department of Transportation as separate defendants, the latter is a department of the former. As a result, there is in fact only one defendant - the State of New York.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113012
Motion number(s):
M-72643
Cross-motion number(s):
CM-73027
Judge:
NORMAN I. SIEGEL
Claimant’s attorney:
DENISE L. JORDAN, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General of the State of New YorkBy: JOEL L. MARMELSTEIN, ESQ., A.A.G.
Third-party defendant’s attorney:

Signature date:
June 7, 2007
City:
Utica
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant has made application for a pre-answer motion to dismiss claim pursuant to CPLR Rule 3211 (a) (2) and (8). Claimant cross-moves for permission to file a late claim pursuant to Court of Claims Act Section 10 (6). The following papers were considered by the court:
1. Notice of Motion, filed December 8, 2006
2. Affirmation of Joel L. Marmelstein, Esq., dated December 8, 2006
3. Exhibits A and B, annexed to the moving papers
4. Letter of claimant, Denise L. Jordan, dated December 17, 2006
5. Notice of Cross-Motion, filed March 6, 2007
6. Affidavit of Denise Jordan, sworn to February 22, 2007
7. Exhibits annexed to the Cross-Motion papers

_________________________________________________


_____________________________________________


This matter comes before the court on defendant’s pre-answer motion to dismiss the claim herein, pursuant to CPLR Rule 3211 (a) (2) and (8), on the grounds that the court lacks subject matter jurisdiction and/or personal jurisdiction over the defendant.

Claimant cross-moves for permission to file a late claim, pursuant to Court of Claims Act Section 10 (6). Defendant has submitted no opposition to the cross-motion.


DEFENDANT’S MOTION TO DISMISS
The claim seeks money damages of $2,592.71 for damage alleged to have occurred to claimant’s vehicle as a result of an incident occurring on August 16, 2006. In support of the defendant’s motion, counsel’s affirmation states that the Attorney General’s Office did not receive the claim until November 15, 2006 - one day after the expiration of the statutory time limit. In support of this assertion, moving papers attach a copy of the envelope, which contained the claim, showing the Attorney General’s receipt stamp, dated November 15, 2006 and showing a postmark of November 14, 2006, the date that the time limitation expired.

The claimant’s opposition to defendant’s motion (as opposed to claimant’s cross-motion, which does not address the merits of defendant’s motion) is provided to the court in an unsworn letter. The letter does not dispute the factual assertions made in the moving papers. Rather, the claimant states:

The claim was served upon the New York State Court of Claims within the required 90 day period. I had thoroughly read the “Frequently Asked Questions” on the New York Court of Claims website prior to filing the claim. Based upon the following information provided “Filing occurs on the date when a claim is received in the office of the Chief Clerk, in Albany, not when it is mailed”, I faxed the claim to the New York State Court of Claims on November 14, 2006 which was within the 90 day period. The next day I mailed a copy via certified mail to the Attorney General.


Claimant appears to confuse “filing” with “service”. A claim is filed with the Court of Claims; it is served upon the defendant. The accomplishment of one has nothing to do with the accomplishment of the other. And obviously, while the language of the Court of Claims Act takes precedence over any informational material offered on a website, nevertheless, the website itself is not misleading. The Court of Claims website, in its “Frequently Asked Questions” poses the query “[h]ow do I commence a claim in the Court of Claims” and answers the question, in relevant part, as follows:
A claim is commenced by completing the following steps (see Court of Claims Act § 11[a]):

  1. preparing a document called a "claim",
  2. filing
    a copy with the Clerk of the Court, and
  3. serving
    a copy upon the Attorney General, either personally or by certified mail, return receipt requested.

The website also asks the question “[w]hen must a claim be served and filed?” [emphasis added], and answers that question with an explanation that property damage claims must be served and filed within 90 days of accrual. Nowhere on the site does it state that the filing of a claim makes timely service of the claim unnecessary.

As the Attorney General correctly notes, Court of Claims Act § 10 (3) requires that the claim must be served upon the Attorney General within ninety days of accrual. Service upon the Attorney General is complete upon receipt of the claim. Muscat v State of New York, 103 Misc 2d 589; Hard v State of New York, 30 AD2d 631 (4th Dept 1968). In this case, the claim was served late. Failure to timely serve the claim deprives the court of jurisdiction. The requirements of Court of Claims Act § 10 are strictly construed and are jurisdictional prerequisites to maintenance of a claim. Lyles v State of New York, 3 NY3d 396 (2004).

The defendant’s motion to dismiss the claim, pursuant to CPLR Rule 3211, is granted upon the grounds that the court lacks both subject matter jurisdiction and personal jurisdiction over the defendant.

CLAIMANT’S CROSS-MOTION FOR PERMISSION TO FILE A LATE CLAIM
Claimant alleges that on August 16, 2006 at approximately 9:00 a.m. while traveling on Route 233 in the City of Rome, she approached a New York State Department of Transportation (hereinafter referred to as “DOT”) truck. The truck displayed a sign indicating that there was wet paint ahead. After following for some distance, claimant alleges that this truck’s driver “waved” her forward to pass. However, when she passed this truck, there was another DOT truck - the truck actually painting the road - ahead of the first truck. She was unable to safely pass the second truck and was forced back into the lane directly behind the second truck. While in the lane, she tried to stay as far away from the freshly painted line as possible. Ultimately claimant was able to pass the second truck and proceeded to her place of employment. Claimant later discovered that her car had white paint splatters all over its right side.

The following day claimant contacted DOT and thereafter completed the necessary DOT claim form for damages. On October 3, 2006 claimant says that a denial response was issued from DOT. Claimant continued to follow-up with DOT seeking further information, etc. until November 2006.

It is claimant’s contention that the affirmative act of the first driver in waving her around the DOT trucks at a time when she could not safely do so, coupled with a lack of traffic control at the work site, caused her damages.

Court of Claims Act § 10 (6) provides, in relevant part, that:

[i]n determining whether to permit the [late] filing of a claim . . . , the court shall consider, among other factors, whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy.


The presence or absence of any one factor is not dispositive in the court’s consideration of a late claim motion. (see Bay Terrace Coop. Section IV v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, 55 NY2d 979; Rice v State of New York, UID No. 2006-028-598, Claim No. NONE, Motion No. M-71150, Sise, P.J.). Additionally, the court is afforded broad discretion in its determination and consideration of the statutory factors. Gonzalez v State of New York, 299 AD2d 675; Doe v State of New York, UID No. 2004-028-512, Claim No. NONE, Motion No. M-67159, Sise, P.J.

Having reviewed the claimant’s submissions and considered them in the light of the statutory factors applicable to a motion for permission to file a late claim, the court is satisfied that the requested relief is appropriate in this case.

In particular, it is worth noting that the State does not oppose the motion, the application is timely brought, the State had notice and opportunity to investigate, and the claim appears to be meritorious.

Accordingly, claimant’s cross-motion for permission to serve and file a late claim is hereby granted. Claimant is directed to serve a Claim upon the Attorney General and to file same with proof of service, with the Chief Clerk of the Court of Claims, all within forty-five (45) days from the date of filing of this decision and order in the Clerk’s office, with such service and filing to be in accordance with the Court of Claims Act, with particular reference to §§10, 11, 11-a and the Uniform Rules for the Court of Claims at 22 NYCRR §206.1 et seq., including 22 NYCRR § 206.5-b.


June 7, 2007
Utica, New York

HON. NORMAN I. SIEGEL
Judge of the Court of Claims