New York State Court of Claims

New York State Court of Claims

ADDISON v. THE STATE OF NEW YORK, #2009-030-550, Claim No. 117081, Motion No. M-77016


Synopsis


Pre-answer motion to dismiss claim granted. Claim alleges personal injury as a result of motor vehicle accident involving State police vehicle more than one year ago. Claim untimely, and not served and filed by permission. Unreported decision by another judge denying late claim relief, and denial of reargument of same, had been primarily based on lack of appearance of merit.

Case Information

UID:
2009-030-550
Claimant(s):
IRBY J. ADDISON
1 1.The caption has been amended to reflect the only proper defendant.
Claimant short name:
ADDISON
Footnote (claimant name) :

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

Third-party defendant(s):

Claim number(s):
117081
Motion number(s):
M-77016
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
OFSHTEIN LAW FIRM P.C.
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: GWENDOLYN HATCHER, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
August 28, 2009
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers were read and considered on defendant’s pre-answer motion to


dismiss:

1,2 Notice of Motion; Affirmation in Support by Gwendolyn Hatcher, Assistant Attorney General and attached exhibit

  1. Filed papers: claim
The claim filed herein alleges personal injury as a result of a motor vehicle accident involving a State Police vehicle which occurred on June 9, 2008 on the Belt Parkway at its intersection with Francis Lewis Boulevard. The claim was personally served on the Attorney General’s Office on June 22, 2009 and filed in the Office of the Chief Clerk of the Court of Claims on July 6, 2009. [Affirmation in Support by Gwendolyn Hatcher, ¶3, Exhibit A]. A motor vehicle accident report attached to the claim confirms that the accident occurred on June 9, 2008. [Ibid.]. No notice of intention to file a claim appears to have been served within ninety (90) days of its accrual, and the claim itself notes that it is being served within ninety (90) days of accrual (although on its face that is clearly not the case). [Ibid.].

Moreover, it appears that late claim relief was denied previously in connection with the same accident in decisions and orders by Judge Soto issued earlier this year. [See Addison v State of New York, Motion No. M-75916, unreported, (Soto, J., January 15, 2009) and Addison v State of New York, Motion No. M-76528, unreported, (Soto, J., May 4, 2009)]. Significantly, the primary basis for the original denial of late claim relief had been a failure to establish the appearance of merit. [See Ibid. Court of Claims Act §10(6)]. The subsequent motion for reargument was similarly unpersuasive. [Id.]. Thus this claim is not timely because it was not served and filed by permission.

Court of Claims Act §10(3) requires that a claim alleging personal injury as a result of a State employee’s negligent acts during the course of his employment must be served and filed within ninety (90) days of its accrual, unless a notice of intention to file a claim is served within the same time frame, in which case the claim must then be served and filed within two (2) years of accrual. A failure to serve the claim during the time period and in the manner required results in a lack of personal jurisdiction, unless the State has failed to properly plead jurisdictional defenses or raise them by motion. In that case, the defense is waived. Court of Claims Act §11(c).[2]

In this pre-answer motion to dismiss, made within the period that an answer would be served and filed, the defendant correctly argues that the claim is untimely, in that it was served more than ninety (90) days after its accrual. Claimant has not submitted any opposition to the motion.

Accordingly, since the issue has been appropriately raised by timely motion, the defense is not waived, and Claim number 117081 is hereby in all respects dismissed.


August 28, 2009
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[2]. “Any objection or defense based upon failure to comply with (i) the time limitations contained in section ten of this act, (ii) the manner of service requirements set forth in[11(a)], or (iii) the verification requirements as set forth in[11(b)] and [Civil Practice Law and Rules 3022] is waived unless raised, with particularity, either by a motion to dismiss made before service of the responsive pleading is required or in the responsive pleading, and if so waived the court shall not dismiss the claim for such failure.”