New York State Court of Claims

New York State Court of Claims

MCAVANEY v. THE STATE OF NEW YORK, #2008-009-035, Claim No. 115499, Motion No. M-75221


Synopsis


Claimants’ motion seeking permission to verify their previously served Notice of Intention was denied as moot, due to defendant’s failure to properly and timely reject the Notice of Intention.

Case Information

UID:
2008-009-035
Claimant(s):
PATRICIA A. MCAVANEY and KEVIN MCAVANEY
Claimant short name:
MCAVANEY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115499
Motion number(s):
M-75221
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
SUGARMAN LAW FIRM, LLP
BY: Timothy J. Perry, Esq.,Of Counsel.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General
BY: Patricia M. Bordonaro, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
December 18, 2008
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

In this motion, claimants seek leave of the Court to verify their Notice of Intention to File a Claim and their Notice of Claim, nunc pro tunc, as well as to deem their Verified Claim[1] to be properly and timely filed and served.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Attorney Affidavit, with Exhibits 1,2

Correspondence from Patricia M. Bordonaro, Esq., Assistant Attorney General, dated September 12, 2008 3

In their claim, claimants seek damages for personal injuries allegedly suffered by claimant Patricia A. McAvaney, when she fell on a sidewalk at the intersection of North and Arterial Streets in the City of Auburn on July 10, 2006. The claim is based upon allegations of negligence against the State in the installation, inspection and/or maintenance of this sidewalk.

Pursuant to Court of Claims Act § 10(3), a claim alleging negligence against the State must be served and filed within 90 days from the date of accrual, unless a Notice of Intention to File a Claim is served upon the Attorney General within such 90-day period. If a proper Notice of Intention is timely served within such period, the claim must then be served and filed within two years from the date of accrual.

In this matter, the date of the accident forming the basis of this claim is July 10, 2006, which must therefore be considered the date of accrual. According to the affidavit set forth by claimants’ attorney (see Item 2), a Notice of Intention to File a Claim and a Notice of Claim[2] were both personally served upon the Attorney General on August 23, 2006. Although the Notice of Intention to File a Claim was therefore timely served, claimants concede that this Notice of Intention served upon the Attorney General was not verified as required by Court of Claims Act § 11(b).

As indicated herein, claimants then served and filed their claim (Claim No. 115499), properly verified, on July 9, 2008, within two years from the date of accrual of their cause of action.

In its Answer to this claim, however, defendant, in its “Sixth Affirmative Defense”, alleged that the Notice of Intention was not properly verified, thereby making the claim untimely. In other words, defendant contends that since the Notice of Intention was not verified, it should be treated as a nullity, and claimants should not be provided the extension of time to serve and file their claim provided by § 10(3).

In 2003, the Court of Appeals, in Lepkowski v State of New York (1 NY3d 201), stated that “the State must follow the steps in CPLR 3022 in order to preserve any objection that a claim or notice of intention does not comply with the verification requirement” of § 11(b) (at 203). Furthermore, the Court also stated that “[a] defendant who does not notify the adverse party’s attorney with due diligence waives any objection to an absent or defective verification” (at 210).

Subsequently, the Legislature addressed the Lepkowski decision in two separate amendments to § 11 of the Court of Claims Act (ch 460, Laws of 2005; ch 223, Laws of 2007). These amendments, and the verification requirements addressed in the Lepkowski decision, have recently been considered by my learned colleague, Hon. S. Michael Nadel, in Rister v City University of New York, 20 Misc 3d 195. After his in-depth analysis, Judge Nadel concluded that a “defendant is required to both reject the defective claim and to assert its objection/defense as provided by the law” (at 200). The same conclusion, as discussed by Judge Nadel, applies to a defectively verified or unverified notice of intention.

In this particular matter, although defendant did raise the defense that the Notice of Intention was not “properly verified”, there is no evidence or any indication that the Notice of Intention to File a Claim had been properly and timely rejected by the defendant. In fact, there is no indication that the defendant took any steps whatsoever to reject the Notice of Intention. Since defendant did not notify claimants’ attorney with due diligence that the Notice of Intention had been rejected due to a lack of verification, this Court finds that any objection to the lack of verification has been waived, pursuant to Lepkowksi and the subsequent amendments to Court of Claims Act § 11.

Thus, the Notice of Intention which was personally served upon the Attorney General on August 23, 2006 did permit claimants to serve and file their claim within two years from the date of accrual, as permitted by Court of Claims Act § 10(3). Since their claim was served upon the Attorney General and filed with the Clerk of the Court of Claims within two years from the date of accrual, it was timely served and filed.

Accordingly, based on this analysis it is not necessary for this Court to consider the specific relief sought by claimants in this motion. Furthermore, since defendant did not reject the Notice of Intention to File a Claim and has therefore waived any objection, the Sixth Affirmative Defense asserted in its Answer must therefore be stricken.

Accordingly, it is

ORDERED, that Motion No. M-75221 is hereby DENIED, as moot; and it is further

ORDERED, that the Sixth Affirmative Defense asserted in the Answer to Claim No. 115499 is hereby stricken, sua sponte.

December 18, 2008
Syracuse, New York

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




[1]. Concurrently with the filing of this motion, claimants also filed their claim with the Clerk of the Court of Claims, which has been assigned Claim No. 115499.
[2]. Unlike the General Municipal Law, the Court of Claims Act contains no reference to any document titled a “Notice of Claim”. Even so, the terms “Notice of Claim” and “Claim” are often used interchangeably in practice before the Court of Claims. It is apparent to the Court, however, that in this matter claimants did not intend their “Notice of Claim” to be their “Claim”, but rather had relied upon provisions of the General Municipal Law when they prepared and served their “Notice of Claim” upon the Attorney General. Since the service of the “Notice of Claim” has no bearing on the determination made herein, any relief sought by claimants with respect to the “Notice of Claim” will not be considered in this decision and order.