New York State Court of Claims

New York State Court of Claims
LIPKIS v. THE STATE OF NEW YORK, # 2018-040-025, Claim No. 130189, Motion No. M-91210


Claim dismissed: (1) because Court lacks subject matter jurisdiction over the Claim; and (2) Claim not timely served as required by CCA.

Case information

UID: 2018-040-025
Claimant(s): JAMIE R. LIPKIS
Claimant short name: LIPKIS
Footnote (claimant name) :
Footnote (defendant name) : Caption amended to reflect the State of New York as the proper defendant.
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 130189
Motion number(s): M-91210
Cross-motion number(s):
Claimant's attorney: Jamie R. Lipkis, Pro Se
Defendant's attorney: ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
By: Alex J. Freundlich, Esq., AAG
Third-party defendant's attorney:
Signature date: March 16, 2018
City: Albany
Official citation:
Appellate results:
See also (multicaptioned case)


For the reasons set forth below, Defendant's Pre-Answer Motion to dismiss the Claim, pursuant to CPLR 3211(a)(2), on the basis that the Court lacks subject matter jurisdiction over the Claim generally, and also, as a result of Claimant's failure to timely serve the Claim as required by Court of Claims Act 10 and 11(a)(i), is granted.

This pro se Claim, which was filed in the office of the Clerk of the Court on August 30, 2017, alleges: The New York State Department of Motor Vehicles (hereinafter, "DMV") wanted to brand Claimant's 2014 Ford Fusion vehicle serial number 3FA6P0D95ER247221 as salvage rebuilt, when the automobile has never had a salvage brand in two states. The vehicle came from, and was sold as new and used in, the State of Michigan. Claimant's father bought the car and the car was registered and inspected by police and was never given a salvage brand in the State of Florida. The vehicle was given to Claimant by his father. The vehicle has gone through a Ford Motor Company inspection to see if all safety systems are working and has passed. Also, the vehicle went through a New York State safety and emissions inspection and passed. DMV sent Claimant applications for a salvage exam (Claim, 2). It is alleged that the Claim accrued on June 2, 2017 (id., 4). The recovery Claimant is seeking is "a clear title on the automobile or give me back the original title with a transfer back to my father or pay me back $11,300 for a branded title" (Claim, 5).

In support of its Motion, Defendant has provided some additional information. Defendant asserts that Claimant's father purchased the subject vehicle in 2016 in Michigan (Affirmation of Alex J. Freundlich, Esq., Assistant Attorney General [hereinafter, "Freundlich Affirmation"], 2 and Ex. A attached thereto). Defendant further asserts, upon information and belief, the subject vehicle was involved in a car accident on or about February 15, 2016, prior to the date when Claimant's father acquired the vehicle (id., 4) and Ex. A attached).

Counsel asserts that, when Claimant attempted to transfer the vehicle's title from Florida to New York, upon presenting a valid Florida title to the DMV, DMV initially permitted Claimant to register the vehicle in New York. All out-of-state titles are sent to the DMV Title Bureau, and are automatically run through two separate databases to search for discrepancies on the title, such as total loss and vehicles reported stolen. DMV received "hits" in each database detailing that the subject vehicle had been in a crash, and had been labeled a total loss. Therefore, DMV refused to issue a Certificate of Title, however, DMV provided Claimant information on how to apply for a salvage title for the same vehicle (Freundlich Affirmation, 6 and Ex. D attached [June 2, 2017 Division of Field Investigation Letter]). DMV sent a letter to Claimant, dated June 2, 2017, providing that "[DMV is] unable to issue your New York Certificate of Title because your vehicle has a salvage history. Under the Auto Theft Prevention Program, a vehicle considered salvage cannot be registered or titled in New York until it has been examined by our Division of Field Investigation (DFI)" (id. and Ex. D attached). In response to the letter, Claimant commenced this action.

Pursuant to the Court of Claims Act provisions applicable to negligence actions, Claimant was required to file and serve his Claim within 90 days from the date of accrual unless a written Notice of Intention to File a Claim was served upon the Attorney General within such time period. In that case, the Claim itself was required to be filed and served upon the Attorney General within two years after the accrual of the Claim (Court of Claims Act 10[3] [which applies to Claims asserting personal injuries caused by negligence or unintentional torts). In either case, Claimant was required to initiate action within 90 days of the Claim's accrual.

Court of Claims Act 11(a)(i) provides that the Claim shall be filed with the Clerk of the Court and that a copy shall be served upon the Attorney General within the time period provided in Section 10 of the Court of Claims Act, either personally or by certified mail, return receipt requested. The statute further provides that service by certified mail, return receipt requested, is not complete until the Claim or Notice of Intention to File a Claim is received by the Attorney General. It is well established that failure to timely serve the Attorney General in strict compliance with Court of Claims Act 11 gives rise to a jurisdictional defect (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 723 [1989]; Matter of Dreger v New York State Thruway Auth., 177 AD2d 762, 763 [3d Dept 1991], affd 81 NY2d 721 [1992]; Suarez v State of New York, 193 AD2d 1037, 1038 [3d Dept 1993]).

Pursuant to Court of Claims Act 11(c), however, any such defect is waived unless it is raised with particularity as an affirmative defense, either by motion to dismiss prior to service of the responsive pleading or in the responsive pleading itself (see Knight v State of New York, 177 Misc 2d 181, 183 [Ct Cl 1998]).

In his affirmation submitted in support of Defendant's motion, Defense counsel asserts that, Claimant served the Claim upon Defendant by Certified Mail, Return Receipt Requested on September 5, 2017 (Freundlich Affirmation, 18 and Affidavit of Cynthia Watson [Office Assistant 2 in the Claims Bureau of the Attorney General's New York City Office] attached). The Claim asserts that the accrual date is June 2, 2017. Thus, the Claim was served upon Defendant 95 days after accrual and five (5) beyond the 90 days provided for in Court of Claims Act 10(3). In his papers submitted in opposition to the State's Motion, Claimant does not contest that the Claim was not timely served.

Court of Claims Act 10 is more than a statute of limitations; it is a jurisdictional prerequisite to bringing and maintaining an action in this Court (Mallory v State of New York, 196 AD2d 925, 926 [3d Dept 1993]; DeMarco v State of New York, 43 AD2d 786 [4th Dept 1973], affd 37 NY2d 735 [1975]; Antoine v State of New York, 103 Misc 2d 664 [Ct Cl 1980]). Failure to timely comply with the statutory service and filing requirements of the Court of Claims Act constitutes a fatal jurisdictional defect requiring dismissal (Lyles v State of New York, 3 NY3d 396, 400-401 [2004]; Buckles v State of New York, 221 NY 418 [1917]; Langner v State of New York, 65 AD3d 780, 781 [3d Dept 2009]; Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]). The Court cannot waive a defect in jurisdiction that has been timely raised (see Thomas v State of New York, 144 AD2d 882 [3d Dept 1988]). The defect asserted was timely and properly raised with particularity in this Pre-Answer Motion, in accordance with Court of Claims Act 11(c).

Next, the Court will address the asserted lack of subject matter jurisdiction by it over the Claim. In City of New York v State of New York (46 AD3d 1168, 1169 [3d Dept 2007], lv denied 10 NY3d 705 [2008]), the Court stated:

Two inquiries must be made to determine if the Court of Claims has subject matter jurisdiction. As that court has "no jurisdiction to grant strictly equitable relief" (Psaty v Duryea, 306 NY 413, 416 [1954]), but may grant incidental equitable relief so long as the primary claim seeks to recover money damages in appropriation, contract or tort cases (see Ozanam Hall of Queens Nursing Home v State of New York, 241 AD2d 670, 671 [3d Dept] [1997]), "the threshold question is '[w]hether the essential nature of the claim is to recover money, or whether the monetary relief is incidental to the primary claim' " (Madura v State of New York, 12 AD3d 759, 760 [3d Dept] [2004], lv denied 4 NY3d 704 [2005], quoting Matter of Gross v Perales, 72 NY2d 231, 236 [1988]).

Here, the Claim asserts that Defendant wrongfully failed to provide Claimant with a clear title to the subject car and that Claimant is seeking the issuance of a clear New York State title by DMV, or a transfer document, so Claimant's father can register the vehicle in Florida again, as well as a refund of all the fees Claimant paid to DMV (Claim, 5 and Claimant's Affidavit in Opposition). The main relief Claimant seeks is a clear New York State title for the subject vehicle. Thus, purely equitable relief is the essential nature of the Claim. Monetary relief is incidental to the primary relief sought. Accordingly, this is not a Claim over which the Court has jurisdiction as it cannot grant the relief of ordering DMV to issue a clear New York State title to the vehicle. That is a determination which Claimant should have challenged by way of a proceeding pursuant to CPLR Article 78 in Supreme Court. It is well settled that this Court lacks subject matter jurisdiction of a Claim where the primary relief sought is obtainable in an Article 78 proceeding, regardless of how the Claim is characterized (Guy v State of New York, 18 AD3d 936, 937 [3d Dept 2005]). Therefore, even if the Claim was timely served upon Defendant, it would still be dismissed.

Based upon the foregoing, Defendant's Pre-Answer Motion is granted and the Claim is hereby dismissed.

March 16, 2018

Albany, New York


Judge of the Court of Claims

The following papers were read and considered by the Court on Defendant's Motion to dismiss:

Papers Numbered

Notice of Motion, Affirmation in Support,

two Affidavits in Support, & Exhibits Attached 1

Claimant's Affidavit in Opposition &

Exhibits Attached 2

Filed Papers: Claim