New York State Court of Claims

New York State Court of Claims
STALZER v. THE STATE OF NEW YORK, # 2018-032-071, Claim No. 130556, Motion No. M-92044

Synopsis

The Court's Order to Show Cause directing claimant to demonstrate why the claim should not be dismissed for lack of jurisdiction for failure to comply with the service requirements of Court of Claims Act 11 is vacated.

Case information

UID: 2018-032-071
Claimant(s): JOHN STALZER
Claimant short name: STALZER
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 130556
Motion number(s): M-92044
Cross-motion number(s):
Judge: JUDITH A. HARD
Claimant's attorney: Law Offices of Michael S. Lamonsoff, PLLC
By: Darren T. Moore, Esq.
Defendant's attorney: Hon. Barbara D. Underwood, Attorney General
By: Nicole Procida, Assistant Attorney General
Third-party defendant's attorney:
Signature date: October 12, 2018
City: Albany
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

On November 15, 2017, claimant, by his attorneys, Law Offices of Michael S. Lamonsoff, PLLC, filed a claim with the Clerk of the Court seeking damages for injuries sustained when claimant tripped and fell while working as a construction worker. The claim was not accompanied by an Affidavit of Service, and proof of service of the claim upon the Attorney General was not filed with the Clerk of the Court (see 22 NYCRR 206.5 [a]). On its own motion, the Court issued an Order to Show Cause, dated April 4, 2018 and filed on April 5, 2018, directing claimant to demonstrate why the claim should not be dismissed for lack of jurisdiction based upon claimant's failure to comply with the service requirements of Court of Claims Act 11. The Court also ordered that, if the defendant wished to assert that the claim was not served on the Attorney General, that statement should come from someone with personal knowledge of the contents of files and record of the Department of Law.

In response to the Court's Order to Show Cause, defendant submitted the Affidavit of Min Chul Rhee, Clerk/Legal Assistant 1 in the New York City Office of the Attorney General, dated May 17, 2018. Mr. Rhee averred that the claim was not served upon the Attorney General. However, on September 19, 2018, defendant filed and served a motion to dismiss the claim in lieu of an answer (M-92855) prior to the expiration of defendant's time to answer the claim. The papers submitted in support of defendant's motion indicate that the instant claim was served upon the Attorney General on August 8, 2018. As claimant served a notice of intention to file a claim upon the Attorney General on April 13, 2017, he was required to file a claim with the Clerk of the Court and serve the same claim no later than January 26, 2019, two years after the January 26, 2017 accrual date (Court of Claims Act 10 [3]). Claimant filed the instant claim on November 15, 2017 and served the claim upon the Attorney General on August 8, 2018. Accordingly, as it is clear that the claim has been served upon defendant State of New York, the Order to Show Cause must be vacated.

Based upon the foregoing, it is hereby

ORDERED, that the Court's motion (M-92044) is vacated.

October 12, 2018

Albany, New York

JUDITH A. HARD

Judge of the Court of Claims

Papers Considered:

1. Verified Claim, filed on November 15, 2017.

2. Affidavit of Min Chul Rhee, sworn to on May 17, 2018.

3. Affirmation of Nicole M. Procida, AAG, affirmed on September 14, 2018, Exhibit A.