New York State Court of Claims

New York State Court of Claims

LIBERTY MUTUAL v. STATE OF NEW YORK, #2009-042-501, Claim No. 115153, Motion No. M-75733


Synopsis


Defendant brings this motion for a pre-answer motion to dismiss claim pursuant to CPLR Rule 3211 (a) (2) and (8) for lack of subject matter jurisdiction and personal jurisdiction over the defendant. The motion is unopposed and based upon the motion papers, the court finds it clear that the court lacks jurisdiction over the defendant. Defendant’s motion is granted and the claim is dismissed.

Case Information

UID:
2009-042-501
Claimant(s):
LIBERTY MUTUAL INSURANCE COMPANY a/s/o WILLIAM SWINNEY
Claimant short name:
LIBERTY MUTUAL
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115153
Motion number(s):
M-75733
Cross-motion number(s):

Judge:
NORMAN I. SIEGEL
Claimant’s attorney:
CARMAN, CALLAHAN & INGHAM, LLPBy: CHRISTOPHER PERSAD, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQ. Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 5, 2009
City:
Utica
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


This matter comes before the court on the defendant’s pre-answer motion to dismiss the claim, pursuant to CPLR Rule 3211 (a) (2) and (8), for lack of subject matter jurisdiction and personal jurisdiction over the defendant. The motion is unopposed. The court has considered the following papers:
  1. Notice of Motion, filed October 7, 2008
  2. Affirmation of Joel L. Marmelstein, Esq., dated October 7, 2008
  3. Exhibits 1 -5, annexed to the moving papers
__________________________________________



The underlying claim is a subrogation claim for property damage. The claim alleges that the cause of action arose on October 29, 2007. The Attorney General received a notice of intention to file claim on January 30, 2008. A claim was subsequently served and filed in April 2008.

It is the position of the defendant that in order to obtain jurisdiction, it was necessary for the claimant to comply with Court of Claims Act § 10 (3) by either serving the notice of intention to file claim or the claim itself within ninety days of accrual, and that claimant failed to make a timely filing.

A review of the pertinent facts reveals that the notice of intention to file claim was not served until ninety-three days following the date of accrual, and that the claim was not served and filed until months after the service of the notice of intention to file claim.

It is well settled that the Court of Claims does not obtain subject matter jurisdiction unless a claim, or a notice of intention to file, is timely filed (see Court of Claims Act § 10 [3-b]; Rivera v State of New York, 5 AD3d 881, 881 [2004]; Bullard v State of New York, 307 AD2d 676, 677 [2003]).


(Matter of Best v State of New York, 42 AD3d 699, 700).

Based upon the unopposed motion papers before this Court, it is clear that the Court lacks

jurisdiction over the defendant. The defendant’s motion is granted and the claim is dismissed.



February 5, 2009
Utica, New York

HON. NORMAN I. SIEGEL
Judge of the Court of Claims