New York State Court of Claims

New York State Court of Claims

BROTHERS v. THE STATE OF NEW YORK, #2009-010-011, Claim No. 103668, Motion Nos. M-74205, M-75894, CM-76078


Synopsis


Untimely late claim application.

Case Information

UID:
2009-010-011
Claimant(s):
PAUL BROTHERS
Claimant short name:
BROTHERS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103668
Motion number(s):
M-74205, M-75894
Cross-motion number(s):
CM-76078
Judge:
Terry Jane Ruderman
Claimant’s attorney:
POWERS & SANTOLA, LLPBy: Daniel R. Santola, Esq.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General for the State of New YorkBy: John Healey, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 1, 2009
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read and considered by the Court on claimant’s motion (M-74205) for leave to serve and file a late claim:
Notice of Motion, Attorney’s Supporting Affirmation and Exhibits, Affidavit of Paul Brothers, Affidavit of Herbert W. Hubert, Esq., Affidavit of Joseph Carfi, M.D. and Exhibits


The following papers numbered 1-4 were read and considered by the Court on defendant’s motion (M-75894) to dismiss and claimant’s cross-motion (CM-76078) for leave to serve and file a late claim:
Defendant’s Notice of Motion, Attorney’s Supporting Affirmation and Exhibit.....1

Claimant’s Notice of Cross-Motion, Attorney’s Supporting Affirmation in Opposition to Motion and in Support of Cross-Motion and Exhibits, Affidavit of Paul Brothers, Affidavit of Herbert W. Hubert, Esq., Affidavit of Joseph Carfi, M.D. and Exhibits, Claimant’s Memorandum of Law..............................................................2

Defendant’s Reply in Further Support of Motion and in Opposition to Cross-Motion and Exhibits...............................................................................................................3

Claimant’s Memorandum of Law in Reply.................................................................4
Background
Claim No. 103668 alleges that on August 29, 2000 claimant sustained personal injuries due to defendant’s negligence. A notice of intention was not served, nor was the claim timely served and filed within 90 days of its accrual as mandated by Court of Claims Act §§ 10 and 11. The claim was served upon the Attorney General on January 10, 2001 and filed with the Court on January 16, 2001. In April 2001, claimant commenced an action in Supreme Court based upon the same set of facts asserted in the Court of Claims action. On April 2, 2001, the parties to the Court of Claims action entered into a stipulation conditionally dismissing Claim No. 103668. The stipulation was so-ordered by the Court (Santola Affirmation, Ex. A).

Claimant continued to prosecute his Supreme Court action and in August 2006 was granted summary judgment on the issue of liability and subsequently awarded damages. In September 2007, the Appellate Division, Fourth Department, reversed the Supreme Court’s award of summary judgment to plaintiff and granted defendant’s summary judgment motion dismissing the complaint (Brothers v New York State Elec. and Gas Corp., 43 AD3d 1309, affd 11 NY3d 251).

In November 2007, claimant served and filed a motion in the Court of Claims seeking permission to bring a late claim (M-74205). In January 2008, prior to the service of any responsive papers on the late claim application, the Court of Appeals granted leave to appeal from the Appellate Division decision (Brothers v New York State Elec. and Gas Corp., 9 NY3d 818). Accordingly, claimant and defendant entered into a second stipulation in the Court of Claims action, which was so ordered on April 14, 2008. The stipulation provided that claimant’s late claim application (M-74205) would be adjourned until resolution of the Supreme Court action by the Court of Appeals (CM Santola Affirmation, Ex. E). In October 2008, the Court of Appeals affirmed the dismissal of the Supreme Court action (Brothers v New York State Elec. and Gas Corp., 11 NY3d 251 affirming 43 AD3d 1309). In accordance with the terms of the second stipulation, claimant served the Court of Appeals decision upon defendant and defendant’s time within which to move to dismiss or serve an answer began to run. Defendant timely brought a motion to dismiss (M-75894) and claimant opposed the dismissal and cross-moved for permission to serve and file a late claim (CM-76078).
Defendant’s Motion to Dismiss
Defendant moves to dismiss the claim as untimely noting that the claim accrued on August 29, 2000 and that claimant failed to either serve a notice of intention to file a claim or to serve and file a claim within 90 days of its accrual.[1]

Court of Claims Act §10(3) provides that a claim to recover damages for personal injuries caused by negligence shall be filed and served within 90 days of accrual unless, within such time, a notice of intention is served upon the Attorney General. After a notice of intention has been served, a claim must be filed and served within two years of accrual. The service requirements set forth in Court of Claims Act §§ 10 and 11 are jurisdictional in nature and require strict compliance as a precondition of suit against the State (see Dreger v New York State Thruway Auth., 81 NY2d 721, 724). The provisions of section 11 of the Court of Claims Act are to be strictly construed and failure to comply creates 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). Here, a notice of intention was not served and therefore the claim, served and filed more than 90 days after its accrual, was untimely. Thus, claimant did not meet the statutory prerequisites and the claim must be dismissed for lack of subject matter jurisdiction.

In opposition to the motion, claimant first argues that defendant waived its objection to timeliness under Court of Claims Act § 11(c) which provides that the objection is “waived unless raised, with particularity, either by a motion to dismiss before service of the responsive pleading is required or in the responsive pleading.” Specifically, claimant argues that prior to the parties’ first stipulation, defendant failed to raise any timeliness objections either by answer or by motion to dismiss (CM Santola Affirmation, ¶8). Claimant’s argument is specious as the first stipulation clearly provided that, if the claim were reactivated by claimant, then “defendant shall be entitled to serve and file an answer or otherwise move” (CM Santola Affirmation, Ex. A, ¶5). Additionally, the first stipulation expressly provided that if the claim is reactivated, it would be “subject to whatever legal objections which may apply” (id. at ¶9). The second stipulation provided that defendant’s time began to run when claimant served defendant with the Court of Appeals decision. On October 30, 2008, claimant served defendant with the Court of Appeals decision and defendant brought the motion to dismiss on November 20, 2008 within the stipulated time period and clearly asserted its jurisdictional objections. Thus, the Court does not find that defendant waived its objection and finds that the stipulations clearly preserved defendant’s time to move to dismiss or to serve an answer (see CM Santola Affirmation, Ex. A, ¶ 5 and Ex. E).

The Court also rejects claimant’s alternative argument that if the parties’ stipulations extended defendant’s time to move or answer, then the stipulations also effectively extended claimant’s time to make a late claim application. Claimant’s argument is without legal support. The parties could not, by stipulation, empower the Court with jurisdiction to hear a late claim application after the statute of limitations incorporated into Court of Claims Act §10(6) had lapsed. This issue is addressed further with regard to claimant’s late claim application.

Accordingly, the State’s motion to dismiss is hereby GRANTED (CPLR 3211[a][2], [a][7] and [a][8]).
Claimant’s Late Claim Applications
An application brought pursuant to Court of Claims Act 10(6) which seeks leave to serve and file a late claim must be brought “before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules [emphasis added].” The failure to bring the motion before the expiration of the statute of limitations precludes the Court from considering the application (see Matter of Miller v State of New York, 283 AD2d 830) because “[t]he failure to file such application within the proscribed time period ‘creates a jurisdictional defect and the court is without discretionary power to grant nunc pro tunc relief’ ” (Bergmann v State of New York, 281 AD2d 731, 733; see also Hernandez v State of New York, 39 AD3d 709). Here, the applicable statute of limitations period is three years (CPLR §214) and claimant’s motions were brought more than seven and eight years, respectively, after the accrual of the claim. Accordingly, the Court is without jurisdiction to entertain the motions because “[o]nce the applicable limitations period expired * * * the court was without authority either to entertain a subsequent motion to extend the time to file a late claim, or, sua sponte, to grant such relief” (Roberts v City University of New York, 41 AD3d 825, 826; see alsolain Sands v State of New York, 49 AD3d 444, 445; Crum & Foster Ins. Co. v State of New York, 25 AD3d 643, 644).

Claimant argues that the parties’ stipulations effectively extended the legislatively mandated time provisions set forth in Court of Claims Act 10(6). This Court does not agree. The first stipulation merely provided that, “[i]n the event this claim is reactivated, claimant shall be entitled to make application to this Court for permission to file a late claim pursuant to Court of Claims Act §10” (see Santola Affirmation, Ex. A) and the second stipulation simply adjourned M-74205 until resolution by the Court of Appeals of the companion action (see CM Santola Affirmation, Ex. E). The plain language of the stipulations do not specifically address the Court of Claims Act 10(6) reference to the statute of limitations set forth in Article 2 of the CPLR. Additionally, the first stipulation provides that, ”[i]n the event this claim is reactivated, the filing of said claim is subject to whatever legal objections which may apply” (Santola Affirmation, Ex. A). Thus, it is implicit in the stipulations that the parties’ agreement was subject to the applicable law. Moreover, it is not even clear whether defendant has the authority to waive such a jurisdictional defect. The Court of Claims is a court of limited jurisdiction and prior to the enactment of Court of Claims Act §11(c) the fact that the State may have “affirmatively disavowed any jurisdictional objections” was deemed irrelevant (see Scott v State of New York, 204 AD2d 424, lv denied 84 NY2d 806). Claimant cites no authority sanctioning a waiver of the statutorily mandated time provisions and indeed, the Court is without authority to override the legislation (Roberts v City University of New York 41 AD3d 825, 826 [“(o)nce the applicable limitations period expired * * * the court was without authority either to entertain a subsequent motion to extend the time to file a late claim, or, sua sponte, to grant such relief”]).

Notably, there was nothing that prevented claimant from bringing a 10(6) motion in a timely fashion, i.e., before August 2003, and then seeking an adjournment of its resolution while the companion case in Supreme Court proceeded through the appellate process. The Court finds claimant’s arguments to be unavailing.

Defendant’s motion (M-75894) to dismiss Claim No. 103668 is GRANTED and the claim is dismissed. Claimant’s motion (M-74205) and cross-motion (CM-76078) for permission to file a late claim are DENIED.

June 1, 2009
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims




[1]. Defendant also argues that the claim warrants dismissal because it fails to allege facts with sufficient specificity to assert a claim. In light of the Court’s determination regarding the timeliness issue, the Court need not address whether the claim is sufficiently specific.