Defendant's 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.
|Claimant short name:||DORR|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||GINA M. LOPEZ-SUMMA|
|Claimant's attorney:||Frank N. Ambrosino, Esq.|
|Defendant's attorney:||Hon. Eric T. Schneiderman, Attorney General
By: John L. Belford, IV, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||March 27, 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-D; Claimant's Notice of Cross-Motion; Claimant's Affirmation with annexed Exhibit; and Defendant's Affirmation in Further Support and in Opposition to Cross-Motion.
Defendant, the State of New York, has brought this motion seeking an order pursuant to Court of Claims Act §§ 10 and 11 dismissing the claim. In response claimant, Michael Dorr, has brought a cross motion seeking an order pursuant to Court of Claims Act § 10 (6) granting leave to file a late claim(1) .
The underlying claim in this matter concerns an incident which occurred at the Charles K. Post Treatment Center at approximately 5:30 a.m. on March 5, 2012. At that time claimant was a resident at the facility and was allegedly caused to jump out of a second story window due to the negligence of defendant.
Claimant did not serve a notice of intention in this matter. Claimant served his claim by personal service upon the New York State Attorney General's Office on June 6, 2012. Claimant filed the claim with the Court on March 31, 2012.
Defendant raised as its third affirmative defense in its answer that the Court lacks jurisdiction over the claim due to claimant's failure to timely serve 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.
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.
March 27, 2018
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims
1. The Court of Claims Act does not provide for the filing of a late "notice of claim."