New York State Court of Claims

New York State Court of Claims
LA PRADE v. STATE OF NEW YORK, # 2018-040-051, Claim No. 128536, Motion No. M-91927

Synopsis

State's Motion to Dismiss Claim on basis that Notice of Intention was improperly served upon Defendant in violation of CCA and did not extend Claimants' time to serve and file the Claim granted.

Case information

UID: 2018-040-051
Claimant(s): CHRISTOPHER R. LAPRADE and MEGAN LAPRADE
Claimant short name: LA PRADE
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 128536
Motion number(s): M-91927
Cross-motion number(s):
Judge: CHRISTOPHER J. McCARTHY
Claimant's attorney: POISSANT, NICHOLS, GRUE, VANIER & BABBIE, P.C.
By: Joseph P. Nichols, Esq.
Defendant's attorney: BARBARA D. UNDERWOOD
Acting Attorney General of the State of New York
By: Sean B. Virkler, Esq., AAG
Third-party defendant's attorney:
Signature date: May 22, 2018
City: Albany
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

For the reasons set forth below, Defendant's Motion to dismiss the Claim on the basis that the Notice of Intention was improperly served upon Defendant in violation of Court of Claims Act 10 and 11 and, thus, did not extend Claimants' time to serve and file the Claim, resulting in the Claim being untimely served and filed pursuant to Court of Claims Act 10, is granted.

This Claim, which was filed with the office of the Clerk of the Court on September 16, 2016, asserts that, on February 27, 2015 at approximately 10:37 a.m., Claimant, Christopher LaPrade, was operating a tanker vehicle eastbound on State Route 131 in Massena, New York, and, at a point approximately 100 feet west of the intersection with the Alcoa plant, Claimant's vehicle struck a divot and depression on the paved section of the highway, which caused the vehicle to overturn (Claim, 4, 5). It is alleged that the State was negligent in the ownership, construction, and maintenance of the highway (id., 5).

Defendant seeks dismissal of the Claim on the basis that Claimants failed to serve the Notice of Intention to File a Claim upon Defendant in the manner required by Court of Claims Act 11(a) (Affirmation of Sean B. Virkler, Esq., Assistant Attorney General [hereinafter, "Virkler Affirmation"], 4). As pertinent to the instant matter, Court of Claims Act  11(a)(i) provides that the Notice of Intention, if one is served, and the Claim, each shall be served personally or by certified mail, return receipt requested, upon the Attorney General within the time period provided in Court of Claims Act 10(3).

Pursuant to the Court of Claims Act provisions applicable to negligence actions, Claimants were required to file and serve their 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]). In either case, Claimants were required to initiate action within 90 days of the Claim's accrual.

In his affirmation submitted in support of the Motion, Defense counsel asserts that, on May 8, 2015, Claimants served a Notice of Intention upon the Attorney General by regular mail (Virkler Affirmation, 4, and Exhibits A & B attached thereto). In reviewing Exhibit B, a photocopy of the envelope in which the Notice of Intention was purportedly mailed, the Court notes that the postage amounted to $.69 and that there is no certified mail or return receipt sticker affixed to the envelope. Defendant asserts that, since the Notice of Intention was not properly served upon Defendant, it did not extend Claimants' time to serve and file the Claim (id., 10). Defense counsel further asserts that, on September 16, 2016, Claimants served the Claim upon the Attorney General by certified mail, return receipt requested (id., 5, 9, and Ex. C attached to State's Motion), more than a year after the Claim accrued and, thus, the Claim was untimely. Moreover, Claimants failed to controvert Defendant's assertions or provide evidence that the Notice of Intention was properly served upon the State (see Affirmation of Joseph P. Nichols, Esq., 5, 7, 11).

The failure to properly serve the Attorney General gives rise to a defect in jurisdiction which, if not raised with particularity, is subject to the waiver provisions of Court of Claims Act  11(c) (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]; Knight v State of New York, 177 Misc 2d 181, 183 [Ct Cl 1998]).

Section 11 of the Court of Claims Act constitutes a jurisdictional prerequisite to the institution and maintenance of a claim against the State and, thus, must be strictly construed (Buckles v State of New York, 221 NY 418 [1917]; Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]; Byrne v State of New York, 104 AD2d 782 [2d Dept 1984], appeal denied 64 NY2d 607 [1985]). The Court cannot waive a defect in jurisdiction that has been timely raised (Thomas v State of New York, 144 AD2d 882 [3d Dept 1988]). Defendant timely and properly raised, with particularity, in its Answer, dated October 21, 2016, as its Seventh Affirmative Defense, that the Notice of Intention was delivered by ordinary mail, not certified mail, return receipt requested, or personally served, as required by Court of Claims Act 11(a), thus, the Court lacks personal jurisdiction over the Defendant and subject matter jurisdiction over the Claim. Defendant also asserted as its Eleventh Affirmative Defense that the Court lacks subject matter jurisdiction over the Claim and personal jurisdiction over the Defendant, as the Claim "is untimely in that neither the [C]laim nor a [N]otice of [I]ntention was served within ninety (90) days of the accrual as required by Court of Claims Act [] 11 and Court of Claims Act [] 10(3) and 10 (3-b). As noted above, to the extent that a [N]otice of [I]ntention was timely served, it was delivered by ordinary mail instead of personally served or by certified mail, return receipt requested, and is a nullity." Therefore, the Court concludes that Defendant established that the Notice of Intention was improperly served upon it.

Based upon the foregoing, Defendant's Motion is granted and the Claim is hereby dismissed for failure to properly serve the Notice of Intention upon the Attorney General as required by Court of Claims Act 11(a)(i). As the Notice of Intention was not properly served upon Defendant, it did not extend Claimants' time to serve and file the Claim and, thus, the Claim is untimely. The Court finds that the Claim itself, which was filed on September 16, 2016, was not timely filed within 90 days of the Claim's accrual on February 27, 2015. Therefore, the Claim is dismissed.

May 22, 2018

Albany, New York

CHRISTOPHER J. McCARTHY

Judge of the Court of Claims

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

Papers Numbered

Notice of Motion, Affirmation, and Exhibits attached 1

Answering Affirmation and Exhibits attached 2

Reply Affirmation 3

Papers filed: Claim, Answer