New York State Court of Claims

New York State Court of Claims

STATE FARM v. THE STATE OF NEW YORK, NEW YORK STATE OFFICE OF CHILDREN & FAMILY SERVICES and “JOHN DOE”, #2009-042-522, Claim No. 117045, Motion No. M-76975


Synopsis


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

Case Information

UID:
2009-042-522
Claimant(s):
In the Matter of the Claim of STATE FARM AUTOMOBILE INSURANCE COMPANY a/s/o BARBARA JACKSON
Claimant short name:
STATE FARM
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK, NEW YORK STATE OFFICE OF CHILDREN & FAMILY SERVICES and “JOHN DOE”
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
117045
Motion number(s):
M-76975
Cross-motion number(s):

Judge:
NORMAN I. SIEGEL
Claimant’s attorney:
THE LAW OFFICES OF STUART D. MARKOWITZ, P.C.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General of the State of New YorkBy: THOMAS M. TRACE, ESQ.
Third-party defendant’s attorney:

Signature date:
September 21, 2009
City:
Utica
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The court has considered the following papers on defendant’s motion to dismiss the claim:
  1. Notice of Motion, filed July 15, 2009
  2. Affirmation of Thomas M. Trace, Esq., dated July 14, 2009
  3. Exhibit A, annexed to the moving papers
This matter comes before the court on the defendant’s[1] 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 underlying claim is a subrogation claim for property damage. The claim alleges that it accrued on March 17, 2009. The Attorney General was not served with any notice of intention to file a claim. However, the claim was personally served on the Attorney General on June 22, 2009. The records of the Clerk of the Court of Claims indicate that the claim was not filed until June 26, 2009.

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 timely service.

Pursuant to Court of Claims Act § 10, “judgment shall not be granted to a claimant for property damage”

due to negligence, unintentional tort, or intentional tort of a State employee, unless a claim is filed and served upon the Attorney General within 90 days after the accrual of the claim, or the claimant, within 90 days after the accrual of the claim, serves upon the Attorney General a written notice of intention to file a claim therefor, and thereafter files and serves the claim upon the Attorney General within two years after the accrual of the claim (see Conner v State of New York, 268 AD2d 706; Coleman v Webb, 158 AD2d 500). As a condition of the State's limited waiver of sovereign immunity, those requirements are strictly construed and a failure to comply therewith is a jurisdictional defect compelling the dismissal of the claim (see Alston v State of New York, 281 AD2d 741; Crair v Brookdale Hosp. Med. Ctr., 259 AD2d 586, affd 94 NY2d 524; Phillips v State of New York, 237 AD2d 590; Voulgarelis v State of New York, 211 AD2d 675).


(Welch v State of New York, 286 AD2d 496, 497-498; Pizarro v State of New York, 19 AD3d 891, lv denied 5 NY3d 717).

As noted above, there was no service of a notice of intention to file a claim; service of the claim was not made until ninety-seven days following the date of accrual, and the claim was not filed until one hundred one days following the date of accrual.

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.

September 21, 2009
Utica, New York

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




[1].While the caption names The State of New York and New York State Office of Children & Family Services, the only proper party would be The State of New York since the New York State Office of Children & Family Services is a “department” within the State. For purposes of this motion, the only true defendant is The State of New York.