New York State Court of Claims

New York State Court of Claims

TRUDEAU v. NEW YORK STATE OFFICE OF CHILDREN AND FAMILY SERVICES, #2009-032-148, Claim No. 116722, Motion No. M-76753


Synopsis



Case Information

UID:
2009-032-148
Claimant(s):
MAUDE TRUDEAU
Claimant short name:
TRUDEAU
Footnote (claimant name) :

Defendant(s):
NEW YORK STATE OFFICE OF CHILDREN AND FAMILY SERVICES
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
116722
Motion number(s):
M-76753
Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant’s attorney:
Alan Paul Weinraub, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo, NYS Attorney GeneralBy: Michael C. Rizzo, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
September 22, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

For the reasons set forth herein, the Court grants Defendant’s motion to dismiss Claim No. 116722.


The underlying claim, which is verified March 30, 2009 and was filed on April 16, 2009, seeks damages for defamation, negligence, and emotional distress arising out of a written determination made by the New York State Office of Children and Family Services on March 31, 2008.

Defendant moves to dismiss the claim based upon lack of personal jurisdiction, lack of subject matter jurisdiction, and failure to state a cause of action. In support of its motion, Defendant argues that the claim improperly lists the New York State Office of Children and Family Services as the defendant; that while a notice of intention to serve a claim was served upon the Commissioner of the New York State Office of Children and Family Services on May 20, 2008, it was never served upon the Office of the Attorney General, making the service of the Claim upon the Office of the Attorney General on March 31, 2009 untimely; that this Court lacks jurisdiction to hear a challenge to the determination of the New York State Office of Children and Family Services; and that no actions with damages would lie for the discretionary determination of the Office of Children and Family Services, which is entitled to absolute immunity in its quasi-judicial function.

Claimant opposes the motion on the basis that she can amend her petition to correct the defective caption and that the New York State Office of Children and Family Services is a subdivision of the State of New York and therefore liable for judgment of the Court of Claims. Claimant further argues that a Supreme Court decision rendered with respect to Claimant’s petition pursuant to Article 78 of the Civil Practice Law and Rules states that the claims of grossly negligent infliction of harm and emotional distress, defamation, negligence, and intentional infliction of harm and emotional distress should be raised in the Court of Claims.

As the issue of jurisdiction is potentially fatal, the Court will address it first.

Whether characterized as a claim for an intentional tort or an unintentional tort, the time period for serving the claim upon the Attorney General is 90 days from the date of accrual, unless the claimant, within said time, serves the Attorney General with a written notice of intention to file a claim, in which event the claim would need to be filed and served upon the Attorney General within one year after accrual of the claim for an intentional tort or within two years after accrual of the claim for an unintentional tort (Court of Claims Act §§10 [3], 10 [3-b]). Claims and notices of intention to file a claim must be served upon the Attorney General by personal service or certified mail, return receipt requested (Court of Claims Act §11[a]).

Compliance with the filing and service requirements contained in sections 10 and 11 of the Court of Claims Act is a jurisdictional prerequisite to bringing and maintaining an action in the Court of Claims (Buckles v State of New York, 221 NY 418 [1917]), and failure to comply constitutes a fatal jurisdictional defect requiring dismissal (Thomas v State of New York, 144 AD2d 882 [3d Dept 1988]; Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]; Matter of Dreger v New York State Thruway Auth., 177 AD2d 762 [3d Dept 1991], affd 81 NY2d 721 [1992]; Suarez v State of New York, 193 AD2d 1037 [3d Dept 1993]).

The claim herein accrued on March 31, 2008, the date of the written determination of the New York State Office of Children and Family Services. Accordingly, the claim should have been served upon the Office of the Attorney General on or before June 29, 2008, unless a written notice of intention to file a claim was served upon the Attorney General within said time frame. As neither a written notice of intention to file a claim nor a claim were served upon the Attorney General on or before said date, the claim is untimely and must be dismissed.

Based upon the foregoing, the Court grants Defendant’s motion to dismiss (M-76753) and dismisses Claim No. 116722.



September 22, 2009
Albany, New York

HON. JUDITH A. HARD
Judge of the Court of Claims


Papers Considered:
1. Notice of Motion to Dismiss and Affidavit in Support of Motion to Dismiss, sworn to

April 23, 2009, with Exhibits;

2. Affidavit in Opposition to Motion to Dismiss, dated May 20, 2009, with Exhibit.
Filed Papers: Claim (titled “Verified Petition”), filed April 16, 2009.