New York State Court of Claims

New York State Court of Claims

LIBERTY MUTUAL v. THE STATE OF NEW YORK, #2008-009-027, Claim No. 111339, Motion Nos. M-74993, CM-75101


Synopsis


Claimant’s motion for an order to reinstate its claim was denied.

Case Information

UID:
2008-009-027
Claimant(s):
LIBERTY MUTUAL INSURANCE COMPANY
a/s/o KENNETH CUDA
Claimant short name:
LIBERTY MUTUAL
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111339
Motion number(s):
M-74993
Cross-motion number(s):
CM-75101
Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
CARMAN, CALLAHAN & INGHAM, LLP
BY: Susan C. Carman, Esq.,Of Counsel.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General
BY: Roger B. Williams, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
September 30, 2008
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant has brought this motion (M-74993) seeking an order reinstating its claim. Defendant has responded with a cross-motion (CM-75101), not only in opposition to this application, but also requesting that the claim be dismissed for lack of jurisdiction.

The following papers were considered by the Court in connection with these motions:
Notice of Motion, Affirmation, with Exhibit 1,2


Cross-Notice of Motion, Affirmation, with Exhibits 3,4

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 Transportation.

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, 2006.

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 [3]). 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.


September 30, 2008
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims