New York State Court of Claims

New York State Court of Claims

SPENCER v. THE STATE OF NEW YORK, #2008-010-013, Claim No. 115020, Motion No. M-74819


Synopsis


Defendant’s unopposed motion to dismiss granted-no subject matter jurisdiction.

Case Information

UID:
2008-010-013
Claimant(s):
In The Matter of the Claim of PAULETTE SPENCER, INDIVIDUALLY, AND AS PARENT AND NATURAL GUARDIAN OF LEONARD LANGE, A MINOR
Claimant short name:
SPENCER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115020
Motion number(s):
M-74819
Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant’s attorney:
GUSTAVE DE TRAGLIA, JR., ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General for the State of New YorkBy: Vincent Cascio, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 28, 2008
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read and considered by the Court on defendant’s unopposed motion to dismiss:

Notice of Motion, Attorney’s Supporting Affirmation and Exhibits

The claim alleges that on December 17, 2007, Leonard Lange, a minor, sustained physical injury while in the custody and control of Lincoln Hall and on the premises of Lincoln Hall, Lincolndale, Town of Somers, when the sled he was riding struck a tree (Ex. A). The alleged negligence is that the tree was not properly guarded; the sledding trail was not properly marked; and the infant was not properly supervised or instructed with regard to sledding. The claim fails to specifically allege a basis for the State’s liability.

Defendant submits an affirmation of Diane M. Deacon, an attorney and an Assistant Deputy Counsel for the New York State Office of Children and Family Services (NYSOCFS), which states that Lincoln Hall is not owned by the State and that Lincoln Hall employees are not employees of any State agency. Rather, Lincoln Hall is a privately owned organization subject to licensure by the NYSOCFS. Defendant’s role in licensing Lincoln Hall was a discretionary governmental act, which by its nature is clothed with sovereign immunity and, therefore, is not a basis for liability (see Southworth v State of New York, 47 NY2d 874 [absent an assumed special duty, the State is not liable for its acts in licensing, and even if negligent the State’s action is generally held not to be the proximate cause of the injury inflicted by the licensee]; Van Buskirk v State of New York, 38 AD2d 349 [no claim lies against State where, in a quasi-judicial act, the State issued a permit to private association for the construction of a dam and permitee failed to comply with conditions of the permit and dam did not properly function, causing damage to claimants’ property]).

The Court finds that defendant has sufficiently demonstrated entitlement to dismissal of the claim (see Kisloff v State of New York, 248 AD2d 680 [claim against State was appropriately dismissed where State submitted probative documentary evidence and claimant’s materials submitted in opposition were insufficient to create an issue of fact]). Thus, no remedy can be had against the State regarding the allegations of the claim and this Court does not have subject matter jurisdiction over the claim (see Amato v State of New York, 131 Misc 2d 1049; Brown v North Country Community College, 63 Misc 2d 442; Court of Claims Act §9).

Moreover, the claim was served by regular mail and not in accordance with the mandates of Court of Claims Act § 11(a) which provides that the claim shall be served upon the attorney general either personally or by certified mail, return receipt requested. The requirements of §11 of the Court of Claims Act are to be strictly construed and failure to comply with the service provisions is a jurisdictional defect compelling the dismissal of the claim (see Kolnacki v State of New York, 8 NY3d 277, 281 [“(t)he failure to satisfy any of the (statutory) conditions is a jurisdictional defect”]; Welch v State of New York, 286 AD2d 496, 497-98).

Accordingly, defendant’s unrefuted motion to dismiss is hereby GRANTED (CPLR 3211[a][2] and [a][7]; see Social Services Law §371[10][a], 375, 377).



May 28, 2008
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims