New York State Court of Claims

New York State Court of Claims

ALEXANDER v. THE STATE OF NEW YORK, #2009-010-042, Claim No. 117203, Motion No. M-77217


Synopsis


Motion to dismiss granted. Claim not timely served on defendant.

Case Information

UID:
2009-010-042
Claimant(s):
JAMES ALEXANDER AND BARBARA ALEXANDER
1 1.The Court has, sua sponte, amended the caption to reflect the only proper party defendant.
Claimant short name:
ALEXANDER
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court has, sua sponte, amended the caption to reflect the only proper party defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
117203
Motion number(s):
M-77217
Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant’s attorney:
THE GUCCIARDO LAW FIRMBy: Paul L. LaClair, Esq.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General for the State of New YorkBy: Vincent M. Cascio, Assistant Attorney General
Third-party defendant’s attorney:

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

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1-2 were read and considered by the Court on defendant’s motion to dismiss:
Notice of Motion, Supporting Affirmation and Exhibits..........................................1

Attorney’s Affirmation in Opposition.......................................................................2

Claim No. 117203 arises out of a motor vehicle accident which occurred on August 17, 2007. The claim alleges that defendant was negligent in, inter alia, constructing, designing, maintaining and controlling the traffic on Route 120 (Defendant’s Ex. B). A notice of intention was timely served on the Attorney General’s office on November 7, 2007 and the claim was timely filed with the Clerk of the Court on July 31, 2009. However, the claim was not timely served upon defendant within two years of its accrual; rather it was served on August 21, 2009. Accordingly, claimants failed to comply with the statutory mandates requiring both service and filing of the claim within two years of its accrual (Court of Claims Act § 10).

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). A failure to comply with any of 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, the State’s motion to dismiss is hereby GRANTED (CPLR 3211[a][2] and [a][7]).


December 1, 2009
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims