New York State Court of Claims

New York State Court of Claims

CROSS v. STATE OF NEW YORK, #2009-040-030, Claim No. 115588, Motion Nos. M-76002, CM-76061


Synopsis


State’s motion to dismiss as Claim not properly served granted. Cross-motion pursuant to Court of Claims Act § 10(8) to deem the Notice of Intention a duly filed Claim denied as Notice of Intention does not meet specificity requirements of Court of Claims Act § 11(b).

Case Information

UID:
2009-040-030
Claimant(s):
LAWRENCE R. CROSS
1 1.Caption amended to reflect the State of New York as the proper defendant.
Claimant short name:
CROSS
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :
Caption amended to reflect the State of New York as the proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115588
Motion number(s):
M-76002
Cross-motion number(s):
CM-76061
Judge:
CHRISTOPHER J. MCCARTHY
Claimant’s attorney:
Lawrence R. Cross, Pro Se
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New YorkBy: James E. Shoemaker, Esq., AAG
Third-party defendant’s attorney:

Signature date:
April 20, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

For the reasons set forth below, the State’s motion to dismiss the Claim based upon Claimant’s failure to comply with the service requirements of Court of Claims Act § 11 is granted and Claimant’s cross-motion to deem the Notice of Intention to File a Claim as a duly filed Claim pursuant to Court of Claims Act § 10(8)(a) is denied.

The Claim was filed in the office of the Clerk of the Court on July 28, 2008 and alleges that it arises from Defendant’s gross “negligence in connection with damages to a 1971 antique collector quality corvette convertible with LT-1 options package” (Claim, ¶ 2). It is asserted that the Claim accrued in Otsego and Oneida counties and that the accrual date of the Claim “continues to date” (Claim, ¶ 4). The Claim further asserts that Claimant served a Notice of Intention to File a Claim on the Attorney General on June 26, 2006. Defendant asserts that the Claim was received by the Attorney General on July 28, 2008 by regular mail (see Ex. B attached to State’s Motion [copy of envelope received by the Attorney General]).

Defendant seeks dismissal of the Claim based upon Claimant’s failure to properly serve the Claim upon the Attorney General in accordance with Court of Claims Act § 11(a). Court of Claims Act § 11(a)(i) provides that the Claim shall be filed with the Clerk of the Court and that a copy of the Claim shall be served upon the Attorney General within the applicable time period provided in Section 10 of the Court of Claims Act either personally or by certified mail, return receipt requested. It is well established that failure to properly serve the Attorney General gives rise to a jurisdictional defect (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 723 [1989]; Matter of Dreger v New York State Thruway Auth., 177 AD2d 762, 763 [3d Dept 1991], affd 81 NY2d 721 [1992]; Suarez v State of New York, 193 AD2d 1037, 1038 [3d Dept 1993]).

Pursuant to Court of Claims Act § 11(c), however, any such defect is waived unless it is raised with particularity as an affirmative defense, either by motion to dismiss prior to service of the responsive pleading or in the responsive pleading itself (see Knight v State of New York, 177 Misc 2d 181, 183 [Ct Cl 1998]).

Section 11 of the Court of Claims Act constitutes a jurisdictional prerequisite to the institution and maintenance of a claim against the State and, thus, must be strictly construed (Lichtenstein v State of New York, 93 NY2d 911, 913 [1999]; Buckles v State of New York, 221 NY 418 [1917]; Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]; Byrne v State of New York, 104 AD2d 782 [2d Dept 1984], lv denied 64 NY2d 607 [1985]). The Court cannot waive a defect in jurisdiction that has been timely raised (see Thomas v State of New York, 144 AD2d 882 [3d Dept 1988]).

Defendant timely and properly raised with particularity as its first affirmative defense in its Answer (dated August 26, 2008) that the Claim was served by regular mail, not certified mail, return receipt requested or personal service in accordance with Court of Claims Act § 11. Defense counsel asserts that Claimant served the Claim upon the Attorney General by regular mail only (Shoemaker Affirmation, ¶ 4). In reviewing Exhibit B, which includes a photocopy of the envelope in which the Claim was mailed, the Court notes that the postage amounted to 59 cents and that there is no certified mail or return receipt sticker on the envelope. While Claimant has opposed the State’s motion, he has failed to controvert Defendant’s assertions or provide evidence that the Claim was properly served upon the State. Therefore, the Court concludes that Defendant established that the Claim was improperly served upon it and the State’s motion to dismiss based upon the Claimant’s failure to properly serve the Claim is granted. The remainder of the State’s motion is denied as moot.

The Court now turns to Claimant’s cross-motion to treat the Notice of Intention as a duly filed claim. Court of Claims Act §10 (8) (a) provides:
A claimant who timely serves a notice of intention but who fails to timely serve or file a claim may, nevertheless, apply to the court for permission to treat the notice of intention as a claim. The court shall not grant such application unless: it is made upon motion 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; the notice of intention was timely served, and contains facts sufficient to constitute a claim; and the granting of the application would not prejudice the defendant.
Claimant has established that he served a Notice of Intention upon the Attorney General by certified mail, return receipt requested on June 26, 2006 (see Exhibit attached to Claimant’s cross- motion [copy of Notice of Intention stamped received by the Attorney General’s office and a copy of the postal service return receipt card indicating date of receipt]).

The cross-motion is timely as it is made within three years of accrual of the Claim (see CPLR 214[4]). However, as the Notice of Intention alleges that the “CLAIM WILL ACCRUE ON JULY 19, 2006” and it was served on June 26, 2006 some 23 days prior to the alleged accrual date, there is a question as to whether it was timely served or prematurely served.

The next factor for the Court to consider is whether the Notice of Intention contains sufficient facts to constitute a Claim. The Court of Appeals, in Lepkowski v State of New York (1 NY3d 201, 207 [2003]), stated “[a]s relevant here, section 11 (b) places five specific substantive conditions upon the State’s waiver of sovereign immunity by requiring the claim to specify (1) ‘the nature of [the claim]’; (2) ‘the time when’ it arose; (3) the ‘place where’ it arose; (4) ‘the items of damage or injuries claimed to have been sustained’; and (5) ‘the total sum claimed.’ ”

The Court further stated “[t]he Court of Claims Act does not require the State to ferret out or assemble information that section 11 (b) obligates the claimant to allege” [citations omitted] (Lepkowski v State of New York, supra at 208).

In Kolnacki v State of New York (8 NY3d 277, 280-281 [2007]), the Court of Appeals said, “Lepkowski made clear that all of the requirements in section 11 (b) are ‘substantive conditions upon the State's waiver of sovereign immunity’ (1 NY3d at 207). The failure to satisfy any of the conditions is a jurisdictional defect.”

In Little v State of New York (Ct Cl, Claim No. 115112, Motion Nos. M-75469, CM-75658, January 12, 2009, DeBow, J. [UID No. 2009-038-506]), the Court stated with regard to Court of Claims Act § 11(b):
The statement of facts required by Section 11 (b) of the Court of Claims Act must be “made with ‘sufficient definiteness to enable the State to be able to investigate the claim promptly and to ascertain its liability under the circumstances. The statement must be specific enough so as not to mislead, deceive or prejudice the rights of the State. In short, substantial compliance with section 11 is what is required’ ” (Wharton v City Univ. of N.Y., 287 AD2d 559, 559-560 [2d Dept 2001], quoting Grumet v State of New York, 256 AD2d 441, 442 [2d Dept 1998]). “Although a Notice of Intention to file a claim need not include all the facts necessary to state a cause of action, it must at least set forth the general nature of the claim so as to give some indication of the manner in which the claimant was injured and how [defendant] was negligent and enable defendant to ascertain the existence and extent of its liability” (Cendales v State of New York, 2 AD3d 1165, 1167 [3d Dept 2003] [internal quotations omitted], quoting Sega v State of New York, 246 AD2d 753, 755 [3d Dept 1998], lv denied 92 NY2d 805 [1998] and Heisler v State of New York, 78 AD2d 767, 767-768 [4th Dept 1980]).

Here, Claimant’s Notice of Intention asserts that Defendant was grossly negligent in connection with damages sustained by an antique corvette convertible entrusted to one David R. McCartney who, it is alleged, is licensed and regulated under a New York State Department of Motor Vehicle license and doing business as Quality Automotive Collision. The Notice of Intention further asserts that the accrual date is computed from the “date of receipt of Final Disposition of numerous complaints of blatant serious illegal violations” (Notice of Intention, ¶ 5).

Based upon the information alleged in the Notice of Intention, the Court concludes that Claimant has failed to set forth the general nature of the Claim, or to give some indication of the manner in which his property was damaged and how Defendant was negligent so that Defendant might be able to ascertain the existence and extent of its liability. There is no indication in the Notice of Intention of the manner in which the State was allegedly negligent in allowing the vehicle to be damaged. Even when given the liberal review accorded to documents submitted by pro se litigants (Dinerman v NYS Lottery, Ct Cl, Claim No. 114928, Motion Nos. M-74853, M-74854, M-74786, August 18, 2008, DeBow, J. [UID No. 2008-038-609]; Ali v State of New York, Ct Cl, Claim No. 110988, Motion Nos. M-70517, M-70665, CM-70622, February 7, 2006, Sise, PJ. [UID No. 2006-028-516]), the allegations contained in the Notice of Intention fail to satisfy the pleading requirements of Court of Claims Act § 11(b) and, therefore, the motion to deem the Notice of Intention to be a Claim pursuant to Court of Claims Act § 10(8)(a) is denied.


April 20, 2009
Albany, New York

HON. CHRISTOPHER J. MCCARTHY
Judge of the Court of Claims


The following papers were read and considered by the Court on the State’s motion to dismiss the Claim and Claimant’s cross-motion to deem the Notice of Intention to File a Claim as a duly filed Claim pursuant to Court of Claims Act § 10(8)(a):

Papers Numbered


Notice of Motion, Affirmation
and Exhibits attached 1


Notice of Cross-Motion, Affirmation
and Exhibits attached 2


Affirmation in Opposition to

Claimant’s Cross-Motion
and Exhibit attached 3

Claimant’s Reply Affirmation in Opposition 4


Filed Papers: Claim, Answer