New York State Court of Claims

New York State Court of Claims
O'SULLIVAN v. STATE OF NEW YORK, # 2009-039-142, Claim No. 116991, Motion No. M-76911

Synopsis

Defendant's motion to dismiss the claim pursuant to Court of Claims Act 10 (3) and 11 on the grounds that the claim was not commenced in a timely manner, and that the claim is defective as it is not verified is granted. Damages here were reasonably ascertainable in 1996. Since the claim was not served upon the Attorney General until June 2009, well beyond its accrual, the claim is untimely. Nor was the claim verified and defendant's notice to treat the claim as a nullity sent to claimant the same day as receipt of the defective claim constitutes due diligence.

Case information

UID: 2009-039-142
Claimant(s): BARBARA BRACCI-O'SULLIVAN and JOHN A. O'SULLIVAN
Claimant short name: O'SULLIVAN
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 116991
Motion number(s): M-76911
Cross-motion number(s):
Judge: James H. Ferreira
Claimant's attorney: Barbara Bracci-O'Sullivan, pro se
Defendant's attorney: Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Michael C. Rizzo
Assistant Attorney General
Third-party defendant's attorney:
Signature date: September 30, 2009
City: Albany
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

The claim was filed with the Clerk of the Court of Claims on June 15, 2009. In it, claimants allege, among other things, that representatives of various state agencies continue to wrongfully withhold personal property belonging to claimant Barbara Bracci-O'Sullivan consisting of seven microcassette tapes that she submitted to authorities in connection with prior unrelated legal proceedings. Defendant now moves the Court, in lieu of an answer, for an order dismissing the claim pursuant to Court of Claims Act 10 (3) and 11 on the grounds that the claim was not commenced in a timely manner, and that the claim is defective as it is not verified. Claimants oppose the motion and move the Court for an order compelling the disclosure of the microcassettes and for summary judgment.

Court of Claims Act 10 (3) provides, in relevant part, that a claim must be "filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after the accrual of such claim." "For purposes of the Court of Claims Act, a claim accrues when damages are reasonably ascertainable" (Prisco v State of New York, 62 AD3d 978 [2009]). It is well settled that " 'the requirements of the Court of Claims Act as to the filing of claims must be strictly construed because the question of timeliness of filing is jurisdictional' " (Pristell v State of New York, 40 AD3d 1198, 1198 [2007], quoting Roberts v State of New York, 11 AD3d 1000, 1001 [2004]; see also Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]).

In support of the motion, defendant attaches a date-stamped copy of the claim which shows that the claim was received by the Attorney General on June 15, 2009. Claimants allege in the claim that "[f]rom January 1996 until the present day personal property belonging to [her] (seven micro-cassette tapes) has been continuously withheld." In opposition to the motion, claimant Barbara Bracci-O'Sullivan states that she "has had no access to her property since 1996 because it has been continuously concealed from her despite her due diligence in seeking its return by way of subpoenas, court orders and motions." Thus, by claimant's own admissions, any damages were reasonably ascertainable by her in 1996. Contrary to claimants' position, the Court finds "no basis [in the record] for applying a 'discovery rule' " (Conner v State of New York, 268 AD2d 706, 707 [2000], quoting Matter of Barresi v State of New York, 232 AD2d 962, 963 [1996]). Since the claim was not served upon the Attorney General until June 15, 2009, well beyond its accrual, the claim is untimely. The Court is therefore without jurisdiction and the claim must be dismissed.

The claim must also be dismissed because it is not verified. Court of Claims Act 11 (b) provides, in relevant part, that "[t]he claim and notice of intention to file a claim shall be verified in the same manner as a complaint in an action in the supreme court." The Court of Appeals has interpreted the provisions of Section 11 (b) as " 'substantive conditions on the State's waiver of sovereign immunity' " (Kolnacki v State of New York, 8 NY3d 277, 280-281 [2007], quoting Lepkowski v State of New York, 1 NY3d 201, 207 [2003]), and concluded that "[t]he failure to satisfy any of the conditions is a jurisdictional defect" (id. at 281). "Where a pleading is served without a sufficient verification in a case where the adverse party is entitled to a verified pleading, he [or she] may treat it as a nullity, provided he [or she] gives notice with due diligence to the attorney of the adverse party that he [or she] elects so to do" (CPLR 3022). " '[D]ue diligence' as used in [CPLR 3022] has been interpreted to mean notice given immediately . . . or at least within 24 hours of the receipt of a defective pleading" (Air New York, Inc. v Alphonse Hotel Corp., 86 AD2d 932 [1982], quoting Matter of O'Neil v Kasler, 53 AD2d 310 [1976]).

In support of defendant's motion, AAG Rizzo attaches a copy of the claim received by his office on June 15, 2009 which is unverified and unsworn. Assistant Attorney General Michael Rizzo states that "[f]ollowing service of the claim and also on June 15, 2009, the Office of the Attorney General sent a letter to claimant advising that it was treating the claim as a nullity because it was unverified." Attached to counsel's supporting affirmation is a copy of a letter sent to claimants and dated June 15, 2009. The letter informs claimants that defendant "is electing to treat the enclosed document received on today's date as a nullity and is hereby rejecting and returning it to you for the following reasons . . . it is unverified." The Court finds that defendant's notice sent the same day as receipt of the defective claim constitutes due diligence.

In opposition to the motion, claimants offer a copy of a notice of motion "to amend [the] claim . . . to correct the omission of Verification of Claim." However, the copy provided does not contain a file stamp by the Clerk of the Court of Claims, nor does the Court's record contain any such filing. Moreover, there is no proof before the Court that claimants subsequently served defendant with a properly verified claim.

Thus, the Court must conclude that it is without jurisdiction for the additional reason that the claim is not verified. Claimant's requests for relief are denied as unnecessary in light of the Court's decision to dismiss the claim.

Accordingly, it is hereby ORDERED that M-76911 is granted and the claim is dismissed.

September 30, 2009

Albany, New York

James H. Ferreira

Judge of the Court of Claims

Papers Considered:

1. Notice of Motion to Dismiss dated July 3, 2009;

2. Affidavit in Support of Motion to Dismiss by Michael C. Rizzo, AAG sworn to on July 3, 2009 with exhibits; and

3. Reply to Defendant's Motion by Barbara Bracci-O'Sullivan and Motion to Compel Disclosure And/Or Demand for Relief With Summary Judgment with exhibits.