New York State Court of Claims

New York State Court of Claims

COBBLAH v. STATE OF NEW YORK, #2009-040-049, Claim No. 116043, Motion Nos. M-76536, CM-76645


Synopsis


State’s motion to dismiss for failure to comply with Court of Claims Act service requirements granted. Cross-motion o file a late claim also granted.

Case Information

UID:
2009-040-049
Claimant(s):
NEE MOTA COBBLAH, a/k/a GEORGE NEE MOTA COBBLAH
1 1.Caption amended to reflect the State of New York as the proper defendant.
Claimant short name:
COBBLAH
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):
116043
Motion number(s):
M-76536
Cross-motion number(s):
CM-76645
Judge:
CHRISTOPHER J. McCARTHY
Claimant’s attorney:
George Nee Mota Cobblah, Pro Se
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New YorkBy: Stephen J. Maher, Esq., AAG
Third-party defendant’s attorney:

Signature date:
June 9, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

For the reasons set forth below, Defendant’s motion to dismiss this pro se Claimant’s Claim based upon Claimant’s failure to comply with the service requirements of Court of Claims Act §§ 10 and 11 is granted. The remainder of the motion is denied as moot. Claimant’s cross-motion for permission to file a Claim late, pursuant to Court of Claims Act § 10(6), is granted.

The Claim, which was filed with the Clerk of the Court on November 5, 2008, alleges that, on February 14, 2008 at approximately 4:30 pm, Claimant was involved in a motor vehicle accident with a New York City Fire Department truck. It is further alleged that, following the accident, Claimant was arrested by New York City Police for driving with a suspended license. It is alleged that Claimant was incarcerated for two days because of the negligence of employees of the New York State Department of Motor Vehicles (DMV) in reporting that Claimant’s license was suspended.

Pursuant to Court of Claims Act § 10(3), the provision applicable to personal injury actions caused by negligence or unintentional torts of State employees, Claimant was required to file and serve his Claim within 90 days from the date of accrual unless a written Notice of Intention to File a Claim was served upon the Attorney General within such time period. In that case, the Claim itself was required to be filed and served upon the Attorney General within two years after the accrual of the Claim. In either case, Claimant was required to initiate action within 90 days of the Claim’s accrual.

Court of Claims Act § 11(a)(i) provides that the Claim shall be filed with the Clerk of the Court and that a copy shall be served upon the Attorney General within the time period provided in Section 10 of the Court of Claims Act, either personally or by certified mail, return receipt requested. The statute further provides that service by certified mail, return receipt requested, is not complete until the Claim or Notice of Intention to File a Claim is received by the Attorney General. It is well established that failure to timely serve the Attorney General in strict compliance with Court of Claims Act § 11 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]).

In his affirmation submitted in support of the State’s motion, Defense counsel notes that, in the Claim, Claimant asserts that he served a Notice of Intention to File a Claim upon the Attorney General’s office on May 25, 2008 (Affirmation of Stephen J. Maher, ¶ 3). Counsel further states that Defendant has no record of the Notice of Intention. The Claim was personally served upon Defendant on November 25, 2008 (id.; see Ex. A attached to Motion). Claimant has alleged that the Claim accrued on February 14, 2008. Thus, Claimant had 90 days from February 14, 2008, either to timely serve his Notice of Intention to File a Claim, or to serve and file his Claim. Therefore, Claimant had until Wednesday, May 14, 2008 to initiate action. As stated above, the document was allegedly served on May 25, 2008, 11 days late. The Court also notes that May 25, 2008 was a Sunday and not a weekday when the Attorney General would receive papers. Claimant has not offered any evidentiary proof concerning service of the Notice of Intention. It appears that Claimant mailed the document on May 25, 2008 and it is not the day it was received by Defendant. As the Notice of Intention was not timely served, it did not extend Claimant’s time to serve and file the Claim. Thus, the Claim was not timely served and filed as required by Court of Claims Act § 10(3).

Court of Claims Act § 10 is more than a statute of limitations; it is a jurisdictional prerequisite to bringing and maintaining an action in this Court (DeMarco v State of New York, 43 AD2d 786 [4th Dept 1973], affd 37 NY2d 735(1975); Antoine v State of New York, 103 Misc 2d 664 [Ct Cl 1980]). Failure to timely comply with the statutory filing requirements of the Court of Claims Act constitutes a fatal jurisdictional defect requiring dismissal (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]). The defect asserted was timely and properly raised with particularity, in the State’s Answer as its fifth defense, in accordance with Court of Claims Act § 11(c).

Based upon the foregoing, Defendant’s motion is granted and the Claim is dismissed for failure to timely serve and file it in accordance with Court of Claims Act § 10(3).

The Court next turns to Claimant’s cross-motion pursuant to Court of Claims Act § 10(6) seeking permission to serve and file a late claim. The Court notes that the proposed Claim attached to Claimant’s motion papers is a copy of the first page of the Claim that the Court has just dismissed. The Court will consider the Claim that was just dismissed as the proposed Claim.

Pursuant to Court of Claims Act § 10(6), it is within the Court’s discretion to allow the filing of a late claim if the applicable statute of limitations set forth in Article 2 of the CPLR has not expired. Thus, the first issue for determination upon any late claim motion is whether the application is timely. In this instance, the proposed Claim asserts a cause of action sounding in negligence (CPLR 214[5]), a three-year statute of limitations). Movant asserts that the Claim accrued on February 14, 2008. Thus, the proposed Claim is timely.

Next, in determining whether to grant a motion to file a late claim, Court of Claims Act § 10(6) sets forth six factors that should be considered, although other factors deemed relevant also may be taken into account (Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]). Movant need not satisfy every statutory element (see Bay Terrace Coop. Section IV v New York State Employees’ Retirement Sys. Policemen’s & Firemen’s Retirement Sys., 55 NY2d 979, 981 [1982]). However, the burden rests with Movant to persuade the Court to grant his or her late claim motion (see Matter of Flannery v State of New York, 91 Misc 2d 797 [Ct Cl 1977]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]).

The first factor to be considered is whether the delay in filing the claim was excusable. The Court finds Movant’s proffered excuse for the delay in timely filing and serving the claim – lack of knowledge of the Court’s filing requirements – is not a reasonable excuse (Modern Transfer Co. v State of New York, 37 AD2d 756 [4th Dept 1971]; Fowx v State of New York, 12 Misc 3d 1184[A] [Ct Cl 2006]). However, tender of a reasonable excuse for delay in filing a claim is not a precondition to permission to file a late claim such as to constitute a sine qua non for the requested relief (Bay Terrace Coop. Section IV v New York State Employees’ Retirement Sys. Policemen’s & Firemen’s Retirement Sys., 55 NY2d 979, supra at 981).

The next three factors to be addressed – whether Defendant had notice of the essential facts constituting the claim, whether Defendant had an opportunity to investigate the circumstances underlying the claim, and whether the failure to file or serve a timely claim or to serve a notice of intention resulted in substantial prejudice to Defendant – are interrelated and will be considered together.

In his affirmation in opposition to the motion, State’s counsel asserts that the State did not have notice of the incident or an opportunity to investigate the incident and will be prejudiced by its inability to do so (Affirmation in Opposition of Stephen J. Maher, ¶¶ 4, 7). At best, the above statement can be considered an argument that the State might be substantially prejudiced by the delay in filing. However, counsel has submitted only his own conclusory affirmation in this regard. There is no statement from a potential witness stating that the State attempted an investigation and was unable to do so. The Court concludes that the State will not be substantially prejudiced by the approximately one-year delay between the expiration of the 90-day period and the making of this motion. Thus, the Court concludes these factors weigh in Movant’s favor.

The fifth factor to be considered is whether Movant has another remedy available. It appears that Movant does not have any alternate remedy regarding his arrest for driving with an allegedly suspended license as it appears the New York City Police relied on information supplied by DMV.

The sixth, final and perhaps most important factor to be considered is whether the proposed claim has the appearance of merit, for it would be futile to permit a defective claim to be filed, subject to dismissal, even if other factors tended to favor the request (Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]; Prusack v State of New York, 117 AD2d 729, 730 [2d Dept 1986]; Rosenhack v State of New York, 112 Misc 2d 967, 968 [Ct Cl 1982]; Flaherty Corp. v State of New York [New York State Parks & Recreation Div.], 102 Misc 2d 438, 440 [Ct Cl 1979]). It is Movant’s burden to show that the claim is not patently groundless, frivolous or legally defective, and, based upon the entire record, including the proposed claim and any affidavits, that there is reasonable cause to believe that a valid cause of action exists. While this standard clearly places a heavier burden upon a party who has filed late than upon one whose claim is timely, it does not, and should not, require Movant to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit Movant to file a late claim (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, supra at 11-12).

At this stage of the proceeding, it should be noted, the Court generally takes as true factual allegations of Movant. Based upon the entire record, the Court finds that the proposed Claim has the appearance of merit. Movant need only establish the appearance of merit; he need not prove a prima facie case at this stage of the proceedings.

In accordance with the foregoing, the Court finds that the preponderance of factors considered weigh in Movant’s favor. The mix of circumstances presented by this case falls well within the remedial purposes of the amendments to the Court of Claims Act enacted in 1976 (L 1976, ch 280), which was designed to vest in the Court of Claims broader discretion than previously existed to permit late filing, indicating a strong concern that litigants with meritorious claims be afforded their day in court (Calzada v State of New York, 121 AD2d 988, 989 [1st Dept 1986]; Plate v State of New York, 92 Misc 2d 1033, supra). Movant has provided ample basis for a favorable exercise of this Court’s discretion to grant him leave to file a late claim against the State. Therefore, within forty-five (45) days of the date of filing of this Decision and Order, Movant shall file with the Clerk of the Court his proposed Claim against the State, and serve a copy of the proposed Claim upon the Attorney General by personal service or certified mail, return receipt requested. In serving and filing the Claim, Movant is directed to follow all of the requirements of the Court of Claims Act, including § 11-a, regarding the filing fee, and the Uniform Rules for the Court of Claims.


June 9, 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 Defendant’s motion to dismiss and Movant’s cross-motion for permission to serve and file a claim late:

Papers Numbered


Notice of Motion, Affirmation in Support
and Exhibits Attached 1

Cross-Motion and Exhibits Attached 2


Affirmation in Opposition to Claimant’s
Cross-Motion 3



Filed Papers: Claim, Answer