Defendant's summary judgment motion to dismiss the claim for failure to timely file the claim. Claimant's cross-motion to file a late claim after expiration of statute of limitations. NOI was also served after 90 days.
|Claimant short name:||ACOSTA|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||GINA M. LOPEZ-SUMMA|
|Claimant's attorney:||Bisogno & Meyerson, LLP
By: George D. Silva, Esq.
|Defendant's attorney:||Hon. Eric T. Schneiderman, Attorney General
By: Robert E. Morelli, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||January 17, 2018|
|See also (multicaptioned case)|
The following papers were read and considered by the Court on these motions: Defendant's Notice of Motion; Defendant's Affirmation in Support with annexed Exhibits A-F; Claimant's Notice of Cross-Motion; Claimant's Affirmation with annexed Exhibits A-E; Defendant's Affirmation in Further Support and in Opposition to Cross-Motion with annexed Exhibit A.
Defendant, the State of New York, has brought this motion seeking an order pursuant to CPLR 3212 and Court of Claims Act §§ 10 and 11 dismissing the claim. In response claimant, Feliciano Acosta, has brought a cross motion seeking an order pursuant to Court of Claims Act § 10 (6) granting leave to "deem the Notice of Intention to File Claim dated November 12, 2014 timely served on the Attorney General nunc pro tunc."
The underlying claim in this matter concerns a motor vehicle accident which occurred at approximately 6:05 a.m. on July 23, 2014. At that time, defendant's vehicle came into contact with claimant's parked vehicle at 2810 Route 112 near CR 16. Claimant was sitting in his parked vehicle when the accident occurred.
Claimant served a notice of intention to file a claim upon the New York State Attorney General's Office on November 17, 2014. Thereafter, claimant served his claim on the New York State Attorney General's Office on May 4, 2015.
Defendant raised as its fourth and fifth affirmative defenses in its answer that the Court lacks jurisdiction over the claim due to claimant's failure to timely serve and file the claim or serve the notice of intention within ninety days of the accrual date in accordance with Court of Claims Act §§ 10 and 11.
As the party seeking summary judgment, defendant must make a prima facie showing of entitlement to judgment as a matter of law, by offering sufficient evidence to eliminate any material issues of fact from the case (Cox v Kingsboro Medical Group, 88 NY2d 904 ; Winegrad v New York Univ. Med. Center, 64 NY2d 851 ; Zuckerman v City of New York, 49 NY2d 557 ). Failure to make a prima facie showing requires denial of summary judgment, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 ). Once the proponent of a summary judgment motion establishes a prima facie showing then the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to demonstrate the existence of material issues of fact which require a trial of action (Zuckerman v City of New York, 49 NY2d 557, 562
Court of Claims Act § 10 (3) requires that a claim must be filed and served upon the Office of the Attorney General within ninety days after the accrual of such claim unless the claimant shall within such time serve a notice of intention to file a claim upon the Office of the Attorney General.
The Court of Appeals has long held that "[b]ecause suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed" (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 ). In the present case, neither a notice of intention nor a claim was served upon defendant within ninety days of the accrual date. Claimant's failure to strictly comply with the statutory requirements set forth in Court of Claims Act § 10 (3) deprives this Court of jurisdiction over the claim (Lepkowski v State of New York,1 NY3d 201 ; Weaver v State of New York, 82 AD3d 878 [2d Dept 2011]). Accordingly, the Court must dismiss the claim.
Turning to claimant's cross motion to file a late claim, the Court is constrained to deny claimant's application. Court of Claims Act § 10 (6) states in relevant part that:
"[a] claimant who fails to file or serve upon the attorney general a claim or to serve upon the attorney general a notice of intention, as provided in the foregoing subdivisions, within the time limited therein for filing or serving upon the attorney general the claim or notice of intention, may, nevertheless, in the discretion of the court, be permitted to file such claim at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules."
Claimant's motion was presented after the expiration of the applicable three-year statute of limitations period contained within CPLR § 214. Accordingly, it is well-settled that this Court is without authority to grant claimant's motion (Miles v City Univ. of N.Y., 126 AD3d 609 [1st Dept 2015]; Dolberry v State of New York, 71 AD3d 948 [2d Dept 2010]; Roberts v City Univ of N.Y., 41 AD3d 825 [2d Dept 2007]; Crum & Foster Ins. Co. v State of New York, 25 AD3d 643 [2d Dept 2006]).
Therefore, for the foregoing reasons, defendant's motion to dismiss the claim is granted and claimant's cross motion is denied.
January 17, 2018
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims