New York State Court of Claims

New York State Court of Claims

SMITH v. THE STATE OF NEW YORK, #2009-009-007, Claim No. 106815, Motion No. M-75799


Synopsis


Defendant’s motion seeking leave to renew a prior motion which sought dismissal of the claim based upon claimant’s failure to serve his claim upon the Attorney General was granted, and the claim was dismissed based upon such failure.

Case Information

UID:
2009-009-007
Claimant(s):
WILLIAM SMITH
Claimant short name:
SMITH
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106815
Motion number(s):
M-75799
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
WILLIAM SMITH, Pro Se
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General
BY: Bonnie G. Levy, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
March 19, 2009
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant has brought this motion seeking leave to reargue or renew a prior motion which sought dismissal of this claim. In the prior motion[1], defendant sought dismissal of this claim based upon a failure of the claimant to serve his claim upon the Attorney General.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation of Bonnie Gail Levy, Esq., Assistant Attorney General, with Exhibits 1,2


Affidavit of Heather R. Rubinstein, Esq., Assistant Attorney General, with Exhibits 3

Claimant has not submitted any responsive papers, nor has he contacted the Court in any manner whatsoever regarding this motion or claim.

By a Decision and Order dated September 23, 2008, this Court denied defendant’s motion to dismiss, which was based upon defendant’s contention that claimant had never served his claim upon the Attorney General, as required by Court of Claims Act § 11(a). This Court found, however, that defendant had filed with the Clerk of the Court of Claims a Verified Answer and First Set of Interrogatories on December 23, 2002, thereby indicating that a claim had been served upon the Attorney General in some manner.

Pursuant to CPLR Rule 2221(d), a motion seeking leave to reargue “shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion”. A motion for leave to renew a prior motion, on the other hand, “shall be based upon new facts not offered on the prior motion that would change the prior determination” and “shall contain reasonable justification for the failure to present such facts on the prior motion”, as set forth in CPLR Rule 2221(e). In this particular motion, and as set forth herein, the Court finds that it did not overlook or misapprehend any matters of fact or principles of law in determining the prior motion, and therefore will treat the within motion as one seeking leave to renew, rather than as one to reargue.

As set forth above, defendant originally sought dismissal of this claim due to a failure of claimant to serve his claim upon the Attorney General. This motion was denied, since the Court found evidence that a Verified Answer (and a First Set of Interrogatories) had been filed with the Clerk of the Court. Although these facts remain the same, the Court refers to the Affidavit submitted by Heather R. Rubinstein, Esq., Assistant Attorney General (see Exhibit 3 to Items 1, 2) for the new facts which were not offered on the original motion, and her explanation as to why these facts were not presented at that time.

As set forth in her Affidavit, Ms. Rubinstein had been assigned a file for a claim from the claimant on November 14, 2002, but this file did not contain any pleadings. Shortly thereafter, she received correspondence from the Clerk of the Court of Claims indicating that a claim had been filed in October 2002, and had been designated as Claim No. 106815 (the within claim). The following month, on December 19, 2002, Ms. Rubinstein was assigned a second file regarding claimant, and this file contained a claim, among other papers. The following day, on December 20, 2002, Ms. Rubinstein served and filed a Verified Answer and defendant’s First Set of Interrogatories to this claim. Although at this time she had two “files” regarding claims, she was in possession of only one claim from this claimant, and had also recently received notification of a filed claim which had been designated Claim No. 106815. She therefore affixed this claim number to her Verified Answer and Interrogatories, which were then filed and served. Subsequent to her service and filing of the Verified Answer, she then received a second letter from the Clerk of the Court indicating that another claim from this claimant had been filed and designated as Claim No. 106914. In the opinion of this Court, it is significant that Ms. Rubinstein had served and filed her Verified Answer prior to her receipt of this second acknowledgment letter.

After reviewing these documents, and the two separate claims filed by claimant, it is readily apparent that the Verified Answer and defendant’s First Set of Interrogatories were served with an incorrect claim number affixed thereon. These documents should have been designated as defendant’s response to Claim No. 106914, rather than Claim No. 106815. Upon receipt of these documents by the Clerk of the Court of Claims, however, they were filed under Claim No. 106815, as marked thereon.

This Court had also been assigned Claim No. 106914. The mistake in the designation of defendant’s Verified Answer and Interrogatories was never discovered, however, since Claim No. 106914 was dismissed by this Court, based upon claimant’s failure to appear at a scheduled trial on July 19, 2004.

These newly discovered facts, therefore, if they had been offered on the original motion to dismiss, would change the prior determination of this Court. Based on the facts set forth in Ms. Rubinstein’s Affidavit, the Court also finds that defendant has presented a reasonable justification for its failure to present such facts with its original motion to dismiss. Accordingly, pursuant to CPLR Rule 2221(e), defendant’s motion seeking leave to renew is hereby granted.

Furthermore, based upon the documents submitted in the original motion to dismiss, the Court now accepts defendant’s contention, that claimant never served his claim upon the Attorney General. The failure to do so constitutes a jurisdictional defect, and this failure deprives the Court of jurisdiction to hear the claim (Dreger v New York State Thruway Auth., 81 NY2d 721; Bogel v State of New York, 175 AD2d 493).

The Court notes that claimant has not responded to this motion, nor did he respond to the State’s original motion to dismiss.

Based on the foregoing, therefore, it is

ORDERED, that Motion No. M-75799 seeking permission by the defendant to renew its prior motion to dismiss this claim is hereby GRANTED; and it is further

ORDERED, that after reconsideration of its prior motion, Claim No. 106815 is hereby DISMISSED.


March 19, 2009
Syracuse, New York

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




[1]. Smith v State of New York, Ct Cl, September 23, 2008, Midey, J., Claim No. 106815, Motion No. M-75155, [UID #2008-009-024]). Unpublished decisions and selected orders of the Court of Claims are available via the Internet at http://www.nyscourtofclaims.state.ny.us/decisions.