Filed Papers: Verified Claim, Verified Answer, Order (dated May 12, 2008).
In this claim, claimant, as subrogee of Kenneth Cuda, seeks to recover property
damages to the motor vehicle owned by Kenneth Cuda, its insured, based upon
allegations of negligence against the State through its Department of
The Verified Claim was served upon the Attorney General on September 7, 2005,
and was filed with the Clerk of the Court of Claims on the same date. In a
Stipulation and Order issued by this Court on June 15, 2006, a Note of Issue and
Certificate of Readiness was to be served and filed by claimant on or before
December 14, 2007. Claimant failed to serve and file its Note of Issue by that
date. The claim was then scheduled for a calendar call and conference on May
12, 2008, for an inquiry as to why the Note of Issue and Certificate of
Readiness had not been served and filed as required by said Order. At that
time, claimant failed to provide a satisfactory explanation to the Court. By an
Order dated May 12, 2008, this claim was dismissed, without prejudice, due to
claimant’s failure to comply with the prior scheduling order of June 15,
Claimant now seeks permission to reinstate this claim and restore it to the
Court’s calendar. In support of this application, claimant’s
attorney, in her Affirmation (see Item 2) explains that the Note of Issue had
not been served or filed due to the fact that a number of FOIL requests had been
made to the Department of Transportation to determine if there had been any
prior notice provided to the Department. After finally receiving a response to
these FOIL requests, claimant’s attorney affirms that her firm was then
attempting to settle the case.
The Court notes, however, that the FOIL response referred to in the Affirmation
of claimant’s attorney was conveyed to her by correspondence dated
February 21, 2007, approximately 10 months prior to the date required by this
Court for the service and filing of a Note of Issue and Certificate of
Readiness. Without any further information provided, the Court therefore finds
that claimant has failed to provide an acceptable excuse for its failure to
comply with this Court’s prior scheduling order.
Furthermore, even if this Court was inclined to reinstate this claim,
defendant, in its cross-motion, has raised a jurisdictional defense which will
be addressed herein.
In claims alleging acts of negligence against the State, a Claim must be served
upon the Attorney General and filed with the Clerk of the Court of Claims within
90 days of accrual, unless a Notice of Intention to File a Claim is served upon
the Attorney General within such 90 days. If a Notice of Intention is properly
served upon the Attorney General, the claim must then be served and filed within
two years from the date of accrual (Court of Claims Act § 10 ). These
requirements are jurisdictional prerequisites to the institution and maintenance
of a claim, and must therefore be strictly construed (Phillips v State of New
York, 237 AD2d 590; Byrne v State of New York, 104 AD2d 782, lv
denied 64 NY2d 607).
In its Verified Answer to this claim, defendant contends that this claim is
untimely, since no Claim or Notice of Intention to File a Claim was served upon
the Attorney General within 90 days from the date of accrual. In its claim,
however, claimant alleges that a Notice of Intention was filed (sic) with the
Office of the Attorney General on or about September 23, 2004, and refers to
correspondence dated November 12, 2004 from Susan M. Kushner, a Senior Attorney
with the State Department of Transportation, as proof that a Notice of Intention
was served upon the Attorney General (see Exhibit A to Verified Claim).
This correspondence, however, contains no admission or acknowledgment that a
Notice of Intention had been served upon the Attorney General, but rather merely
acknowledges that claimant’s subrogor (Cynthia Cuda) had submitted an
administrative claim to the Department of Transportation seeking reimbursement
for her property damage. There is no evidence or any indication that a Notice
of Intention to File a Claim was ever served upon the Attorney General, as
required by § 10(3).
As indicated previously, defendant raised this jurisdictional defense as an
affirmative defense in its Verified Answer, thereby preserving the defense as
required by Court of Claims Act § 11(c). If this Court were inclined to
reinstate the claim, as requested by claimant, the Verified Answer (containing
this jurisdictional defense) would also be reinstated, and the claim would still
be subject to dismissal on jurisdictional grounds. In this Court’s
opinion, it would be an exercise in futility for this Court to reinstate this
claim, and then immediately dismiss it upon a motion of the defendant based upon
untimely service and filing.
Accordingly, based upon the foregoing, it is
ORDERED, that Motion No. M-74993, seeking reinstatement of Claim No. 111339, is
hereby DENIED; and it is further
ORDERED, that Cross-Motion No. CM-75101 is hereby DENIED as moot.