New York State Court of Claims

New York State Court of Claims
WITKOVSKY v. THE STATE OF NEW YORK, # 2018-045-013, Claim No. 128060, Motion No. M-91111

Synopsis

Defendant's summary judgment motion to dismiss the claim for failure to timely file the claim.

Case information

UID: 2018-045-013
Claimant(s): VERA WITKOVSKY
Claimant short name: WITKOVSKY
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 128060
Motion number(s): M-91111
Cross-motion number(s):
Judge: GINA M. LOPEZ-SUMMA
Claimant's attorney: John A. Reno, Esq.
Defendant's attorney: Hon. Eric T. Schneiderman, Attorney General
By: Robert E. Morelli, Assistant Attorney General
Third-party defendant's attorney:
Signature date: April 4, 2018
City: Hauppauge
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

The following papers were read and considered by the Court on this motion: Defendant's Notice of Motion; Defendant's Affirmation in Support with annexed Exhibits A-N; Claimant's Affirmation with annexed Exhibits A-G; and Defendant's Affirmation in Further Support 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. Claimant, Vera Witkovsky, has opposed the motion.

The underlying claim in this matter concerns a slip and fall by claimant which occurred at Stony Brook University at approximately 10:00 p.m. on September 13, 2014.

Claimant electronically served a notice of intention to file a claim upon the New York State Attorney General's Office on December 10, 2014. Claimant filed the document with the Clerk of the Court of Claims on the same date and authorized payment of the filing fee to the Court of Claims. The Clerk of the Court of Claims assigned claim number 125371 to that document. Claimant then served a second notice of intention to file a claim, identical to the first notice of intention, upon the New York State Attorney General's Office on December 12, 2014. On January 23, 2015, claimant entered into a stipulation with defendant which stated that the document served upon the Office of the Attorney General on or about December 12, 2014 and filed with the New York State Court of Claims on or about December 10, 2014 was intended to be a notice of intention to file a claim. The stipulation was so ordered on April 3, 2015. This Court also directed the Court of Claims Clerk's Office to close claim 125371 based on the stipulation.

Apparently on April 29, 2016 claimant filed a summons and complaint against defendant in the Supreme Court of the State of New York, County of Suffolk.

On June 13, 2016, claimant filed documents in the Court of Claims Clerk's Office which were assigned claim number 128060(1) . Although the documents filed were titled, "summons" and "complaint" (hereinafter referred to as the claim) and were captioned, "Supreme Court of the State of New York, Suffolk County, the Clerk's Office assigned a claim number to the documents.

Claimant served the claim on defendant by certified mail, return receipt requested on July 8, 2016 and July 11, 2016.

Defendant raised as its first affirmative defense in its answer that the Court lacks jurisdiction over the claim due to claimant's failure to serve the notice of intention to file a claim in compliance with Court of Claims Act 11 (a). Defendant continues that the notice of intention was improperly delivered electronically to the Office of the Attorney General instead of served personally or by certified mail, return receipt requested. In its eighth affirmative defense defendant states that the Court lacks jurisdiction over the claim because the claim is untimely in that neither the notice of intention nor the claim was properly served within ninety days of the accrual of the claim as required by Court of Claims Act 10 (3) 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 [1996]; Winegrad v New York Univ. Med. Center, 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557 [1980]). 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 [1985]). 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

[1980]).

Defendant argues that the Court lacks jurisdiction due to claimant's failure to properly serve either notice of intention.

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.

Court of Claims Act 11 (a) provides that a "notice of intention shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for service upon the attorney general."

Claimant argues that defendant should be estopped from disputing service of the notice of intention due to the April 3, 2015 stipulation. Alternatively, claimant argues that defendant should be deemed to have consented to being served electronically based upon the stipulation.

The stipulation states:

"IT IS HEREBY STIPULATED AND AGREED, by and between the undersigned, the attorneys of record for all the parties in the above-entitled action, that the document served upon the Office of the Attorney General on or about December 12, 2014, and filed with the New York State Court of Claims on or about December 10, 2014, was intended to be a Notice of Intention to File a Claim, as defined in the New York State Court of Claims Act 10(3)."

A stipulation is a contract enforceable according to its terms (ATS-1 Corp. V Rodriguez, 156 AD3d 674 [2d Dept 2017]). "A written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms" (Quadrant Structured Prods. Co., Ltd. V Vertin, 23 NY3d 549, 559-560 [2014]).

The Court finds the terms of the April 3, 2015 stipulation to be clear and unambiguous in that they merely serve to clarify that the document served upon the Attorney General and filed with the Court was meant to be a notice of intention to file a claim. There is no reference in the plain terms of the agreement to the manner of service of the notice of intention or to Court of Claims Act 11 (a).

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 [1992]). Accordingly, a claimant who has not met the literal requirements of the Court of Claims Act has not properly commenced his action (Lichtenstein v State of New York, 93 NY2d 911, 913 [1999]; Finnerty v New York State Thruway Authority, 75 NY2d 721 [1989]). In this case, the requirement that defendant be served in accordance with Court of Claims Act  11 was not met as the claim was served electronically. Claimant's failure to strictly comply with the statutory requirements set forth in Court of Claims Act 11 deprives this Court of jurisdiction over the claim (Lepkowski v State of New York,1 NY3d 201 [2003]; Hargrove v State of New York, 138 AD3d 777 [2d Dept 2016]; Weaver v State of New York, 82 AD3d 878 [2d Dept 2011]). As a result, the Court must dismiss the claim.

Therefore, for the foregoing reasons, defendant's motion is granted and the claim is dismissed.

April 4, 2018

Hauppauge, New York

GINA M. LOPEZ-SUMMA

Judge of the Court of Claims


1. Court of Claims Clerk's Office records reveal that on May 13, 2016 claimant attempted to file the documents but they were returned due to claimant's failure to include the required filing fee. On June 13, 2016, claimant resubmitted the documents with a check for the filing fee in an envelope addressed to the Court of Claims from the office of John A. Reno, Esq.