Following trial, defendant's motion to dismiss claim as untimely was granted.
|Claimant(s):||MENDEL EPSTEIN and RACHEL EPSTEIN|
|Claimant short name:||EPSTEIN|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Schwartz, Goldstone & Campisi, LLP
By: Herbert Rodriguez, Jr., Esquire
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Jyotsna Gorti, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 9, 2010|
|See also (multicaptioned case)|
Claimants Mendel Epstein and Rachel Epstein seek damages allegedly resulting from an automobile accident involving a state-owned vehicle which occurred on January 19, 2006. The parties proceeded to trial on September 16, 2010 at which time the defendant moved to dismiss the claim as untimely served upon the Attorney General. The Court reserved decision on the motion and the parties were permitted to submit post-trial briefs on the issue, but failed to do so.
The instant claim filed in the Office of the Clerk of the Court of Claims on January 14, 2008 alleges, in paragraph 6, that "A Notice of Intention to File a Claim was served on April 12, 2006, which was within 90 days of accrual". Received in evidence without objection was a copy of the claim bearing a date-stamp indicating its receipt by the Attorney General, Managing Attorney's Office on February 13, 2008 (defendant's Exhibit A). The affidavit of service of the claim filed with the Court also reflects that the claim (denominated improperly therein as a "summons and complaint") was served by personal service on the State of New York at the Office of the Attorney General, Managing Attorney's Office, on February 13, 2008. In its answer served on March 19, 2008 the defendant raised as its second affirmative defense that "[t]he Court lacks jurisdiction over the claim due to claimant's failure to timely serve the claim upon the Attorney General's Office in accordance with the Court of Claims Act § 10, which requires service upon the attorney general within two years of the accrual of the claim."
Court of Claims Act § 10 (3) requires that a claim to recover damages for personal injuries or property damage caused by the negligence or unintentional tort of an officer or employee of the State be filed and served within 90 days following accrual of the claim, unless a notice of intention to file a claim is served with that same time period, "in which event the claim shall be filed and served upon the attorney general within two years after the accrual of such claim." The State's waiver of immunity under Section 8 of the Court of Claims Act is contingent upon claimant's compliance with the specific conditions to suit set forth in article II of the Court of Claims Act, including the time limitations set forth in Court of Claims Act § 10 (Lyles v State of New York, 3 NY3d 396 ; Lepkowski v State of New York, 1 NY3d 201 ). As noted by the Court of Appeals in Lyles v State of New York, "[t]he time limitations in the Court of Claims Act . . . are distinctly concerned with the subject matter jurisdiction of the Court of Claims as the State has waived its sovereign immunity against suit only to the extent that claimants comply with the provisions of the statute" (3 NY3d at 400).
The claim alleges that a notice of intention to file a claim was served on April 12, 2006. Assuming this allegation is accurate for purposes of the present motion, service of the notice of intention extended claimants' time to file and serve their claim until two years following the date of accrual. Inasmuch as the claim accrued on January 19, 2006, service and filing of the claim was required to be accomplished by January 19, 2008. Service of the claim upon the Attorney General on February 13, 2008 was therefore untimely. Defendant having raised the defense of untimely service of the claim as its second affirmative defense with sufficient particularity to avert waiver (Court of Claims Act § 11 [c] [i]), the defendant's motion to dismiss the claim based upon claimant's failure to serve the Attorney General within the time frame required by the Court of Claims Act is granted.
Based on the foregoing the claim is dismissed.
Let judgment be entered accordingly.
December 9, 2010
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims