New York State Court of Claims

New York State Court of Claims

MURTI v. STATE OF NEW YORK, #2009-040-075, Claim No. 116932, Motion No. M-76929


Synopsis


Claimant’s motion to serve and file an Amended Claim adding an additional Claimant denied.

Case Information

UID:
2009-040-075
Claimant(s):
LUKMAN MURTI
Claimant short name:
MURTI
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
116932
Motion number(s):
M-76929
Cross-motion number(s):

Judge:
CHRISTOPHER J. McCARTHY
Claimant’s attorney:
LaFAVE, LATIMER, STROUD & JEROME, LLPBy: Chad A. Jerome, Esq.
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:
October 6, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

For the reasons set forth below, the motion to serve and file an Amended Claim is denied.

By Decision and Order dated April 30, 2009, this Court granted Claimant, Lukman Murti, permission to serve and file a Claim late pursuant to Court of Claims Act § 10(6) (see Murti v State of New York, Claim No. None, Motion No. M-76246, McCarthy, J. [UID No. 2009-040-039]). The Court denied the motion of Fonny Murti on the basis that no cause of action was asserted on her behalf. The Claim alleges that, on July 10, 2008 between 9:00 and 9:30 p.m., Lukman Murti fell in a parking lot owned and/or maintained by Defendant. It is further alleged that the parking lot is adjacent to a building located at 677 Broadway, Albany, New York. It is asserted that Lukman Murti was caused to fall over a raised manhole cover as a result of the State’s negligent maintenance of the area.

Claimant now seeks to amend the Claim to add a derivative cause of action on behalf of Fonny Murti for the loss of companionship, society, support and consortium of her husband, Lukman Murti.

CPLR 3025(b) provides that leave to amend shall be freely given upon such terms as are just. Leave to amend a Claim should be freely granted, so long as the proposed amendment does not prejudice or surprise the Defendant, is not “patently devoid of merit” and is not “palpably insufficient” (Shovak v Long Is. Commercial Bank, 50 AD3d 1118, 1120 [2d Dept 2008]; Pellegrini v Richmond County Ambulance Serv., Inc., 48 AD3d 436, 437 [2d Dept 2008]).

Here, Claimant is seeking to amend the Claim to add a derivative claim on behalf of a new Claimant, not amend the Claim to add an additional cause of action for the existing Claimant.

Pursuant to Court of Claims Act provisions applicable to personal injury actions, Ms. Murti was required to file and serve her 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 (Court of Claims Act § 10 [3]). The statutory requirements conditioning suit must be strictly construed (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]; Rodriguez v State of New York, 307 AD2d 657 [3d Dept 2003]).

Here, Ms. Murti’s Claim accrued on July 10, 2008 when her husband’s Claim accrued. Therefore, her Claim was not timely served and filed in accordance with Court of Claims Act § 10(3). “The statutory provisions of the Court of Claims Act may not be circumvented by an amendment of an original claim” (Grande v State of New York, 160 Misc2d 383, 386 [Ct Cl 1994]; see Burrows Paper Co. v State of New York, 174 Misc 850, 856 [Ct Cl 1940]). Ms. Murti’s remedy is to seek permission to serve and file a late Claim pursuant to Court of Claims Act § 10(6) prior to expiration of the underlying statute of limitations. The motion to amend Lukman Murti’s Claim is, therefore, denied.


October 6, 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 Claimant’s motion to amend his Claim:

Papers Numbered

Notice of Motion, Affirmation in Support
& Exhibits attached 1

Affirmation in Opposition 2


Filed Papers; Claim, Answer