New York State Court of Claims

New York State Court of Claims

PROGRESSIVE INS. CO. V. NEW YORK STATE DEPARTMENT OF TRANSPORTATION, #2008-039-071, Claim No. 113898, Motion No. M-74222


Synopsis


Defendant’s motion to dismiss the claim pursuant to Court of Claims Act §§ 10 (3) and 11 and CPLR 3211 (a) (2) and (8) on the ground that the claim was not served in a timely or proper manner is granted and the claim is dismissed. Defendant offered sufficient proof in support of its motion to establish that the claim was served by regular mail, more than 300 days after expiration of the statutory time for service and filing of a claim. Claimant did not oppose the motion

Case Information

UID:
2008-039-071
Claimant(s):
MATTER OF PROGRESSIVE INSURANCE COMPANY A/S/O KEVIN O’SHEA
Claimant short name:
PROGRESSIVE INS. CO.
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113898
Motion number(s):
M-74222
Cross-motion number(s):

Judge:
JAMES H. FERREIRA
Claimant’s attorney:
Friedman, Hirschen & Miller LLPBy: Jeffrey N. Miller, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Michael T. KrenrichAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 8, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The instant claim was filed with the Court on June 27, 2007. Claimant seeks to recover money paid to its insured for property damage and for medical care following a motorcycle accident that occurred on August 25, 2006. Defendant now moves the Court for an order dismissing the claim pursuant to Court of Claims Act §§ 10 (3) and 11, and CPLR 3211 (a) (2) and (8) on the grounds that the claim was not served in a timely or proper manner, and that the claim is not properly verified. The Court did not receive any opposition to the motion from claimant.

Court of Claims Act § 10 (3) provides, in relevant part, that

“[a] claim to recover damages for injuries to property or for personal injuries caused by the negligence or unintentional tort of an officer or employee of the state while acting as such officer or employee, shall be filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after the accrual of such claim.”

Court of Claims Act § 11 (a) (i ) further provides, in relevant part, that “[t]he claim shall be filed with the clerk of the court . . . and . . . a copy shall be served upon the attorney general within the times hereinbefore provided for filing with the clerk of the court either personally or by certified mail, return receipt requested.” “The Court of Appeals has noted in interpreting the above provision that ‘statutory requirements conditioning suit must be strictly construed’ ” (Rodriguez v State of New York, 307 AD2d 657 [2003], quoting Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]). It is well settled that “[o]rdinary mail is not one of the methods of service authorized by Court of Claims Act § 11 (a) and, ‘[g]enerally, the use of ordinary mail to serve the claim upon the Attorney-General is insufficient to acquire jurisdiction over the State’” (Turley v State of New York, 279 AD2d 819, 819 [2001], quoting Philippe v State of New York, 248 AD2d 827 [1998]).

Initially, the Court notes that defendant properly preserved the objections it now raises in its answer (see Court of Claims Act § 11 [c]). In support of its motion, defendant offers the affirmation of Assistant Attorney General Michael Krenrich, who states, among other things, that his office was served with the claim by regular mail on September 24, 2007, more than 300 days after expiration of the statutory time for service and filing of a claim. Krenrich further asserts that claimant did not serve a notice of intention to file a claim upon the Office of the Attorney General. A copy of the claim, with a time-stamp of September 24, 2007, and a copy of the envelope, with a regular mail stamp, are attached as exhibits to Krenrich’s affirmation. Thus, based upon the foregoing principles, and there being no opposition from claimant, the Court is constrained to find that it is without jurisdiction of the claim as it was not served upon the Attorney General in a timely or proper manner pursuant to Court of Claims Act §§ 10 (3) and 11.[1]

Accordingly, it is hereby ordered that M-74222 is granted and the claim is dismissed.

February 8, 2008
Albany, New York

HON. JAMES H. FERREIRA
Judge of the Court of Claims


Papers Considered
:
  1. Notice of Motion to Dismiss dated November 19, 2007; and
  2. Affirmation in Support of Motion to Dismiss by Michael T. Krenrich, AAG, dated November 19, 2007 with exhibits.

[1]. The Court declines to address defendant’s remaining argument that the claim is not properly verified. A review of the claim reveals that it may have been proper for claimant’s attorney to make the verification since claimant “is not in the county where the attorney has his office” (CPLR 3020 [d] [3]).