New York State Court of Claims

New York State Court of Claims
RANSOM v. STATE OF NEW YORK, # 2018-040-064, Claim No. 128953, Motion No. M-91689

Synopsis

State's Motion to Dismiss Claim as untimely served granted.

Case information

UID: 2018-040-064
Claimant(s): JAMES E. RANSOM, DONALD C. RANSOM, MICHAEL J. RANSOM AND OTHERS
Claimant short name: RANSOM
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 128953
Motion number(s): M-91689
Cross-motion number(s):
Judge: CHRISTOPHER J. McCARTHY
Claimant's attorney: Michael J. Ransom, Pro Se
Defendant's attorney: BARBARA D. UNDERWOOD
Attorney General of the State of New York
By: Sean B. Virkler, Esq., AAG
Third-party defendant's attorney:
Signature date: July 24, 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, pursuant to CPLR 3211(a)(2) and (8), on the basis that the Court lacks subject matter jurisdiction over the Claim and personal jurisdiction over the Defendant, as a result of Claimants' failure to timely serve the Claim as required by Court of Claims Act 10(3), 10(4) and 11(a)(i), is granted. The remainder of the Motion is denied as moot.

This pro se Claim, which was filed with the office of the Clerk of the Court on December 16, 2016, asserts that, on or about August 22, 2016, the area, shown on the survey Map No. 50 set forth in schedule "B" attached to the Claim experienced heavy rains and flooding that washed out and otherwise damaged a portion of the Eagle Bay-Sixth Lake State Highway and stream channel and improvements therein and the adjacent portions of the lands thereto. It is alleged that Claimants notified the State of New York to repair the damage, as agreed in the highway and easement agreement, but the State failed and refused to do so (Claim, 2).

The Claim further alleges the culvert in the drainage channel flooded and washed out causing it and the road above to collapse and wash away (Claim, 3). When the State refused to make the requested repairs, Claimants hired a contractor to make the repairs and improvements (id., 4). The repairs were completed on September 16, 2016 (id.).

Pursuant to the Court of Claims Act provisions applicable to property damage 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 (to the extent Claimant asserts injuries caused by negligence or unintentional torts) (Court of Claims Act 10[3]; Kairis v State of New York (113 AD3d 942 [3d Dept 2014]). In either case, Claimants were required to initiate action within 90 days of the Claim's accrual. In addition, a Claim alleging breach of contract must be filed and served within six months after 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[4]). Thus, in this situation, Claimants had to initiate action within 90 days for any cause of action asserting an intentional tort or negligence and six months for any cause of action asserting a breach of contract.

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 its Answer, filed with the office of the Clerk of the Court on May 25, 2017, Defendant asserted as its Thirteenth Affirmative Defense that "[t]his Court lacks subject matter jurisdiction over the [C]laim and personal jurisdiction over the [D]efendant, the State of New York, as the [C]laim is untimely in that neither the Claim nor a Notice of Intention to File a Claim was served within six (6) months of the accrual of the [C]laim as required by Court of Claims Act Sections 11 and 10(4)", and as its Fourteenth Affirmative Defense that, "[t]o the extent that the Claim can be read to assert a cause of action for negligence, this Court lacks subject matter jurisdiction over the [C]laim and personal jurisdiction over the [D]efendant, the State of New York, as the [C]laim is untimely in that neither the Claim nor a Notice of Intention to File a Claim was served within ninety (90) days of the accrual of the [C]laim as required by Court of Claims Act Sections 11 and 10(3)."

In his affirmation submitted in support of the State's Motion, Defense counsel asserts that, according to the Claim, the repairs were completed by September 16, 2016 (Affirmation of Sean B. Virkler, Esq., 6) and that Claimants finished paying for the repairs on September 25, 2016 (id. and Ex. D attached). Defendant asserts that the Claim had to be filed and served on or before March 25, 2017 in order to comply with Court of Claims Act 10(4) (id.)(1) . As stated above, the Claim was filed in the Office of the Clerk of the Court on December 16, 2016. The Claim was served upon Defendant on April 17, 2017 (id., 3 and Ex. A attached).

In opposition to Defendant's Motion, Claimant Michael J. Ransom concedes that Claimants served the Claim upon Defendant late. However, he asserts that Defendant did not suffer any prejudice as a result of such late service (Response to Notice of Motion, 3).

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 Defendant's verified Answer as set forth above, in accordance with Court of Claims Act 11(c) (Czynski v State of New York, 53 AD3d 881, 882 [3d Dept 2008], lv denied 11 NY3d 715 [2009]; Villa v State of New York, 228 AD2d 930, 931 [3d Dept 1996], lv denied 88 NY2d 815 [1996]).

Based upon the foregoing, Defendant's Motion is granted and the Claim is dismissed for failure to timely serve it in accordance with Court of Claims Act 10(3), 10(4), and 11(a)( i). The remainder of the Motion is denied as moot.

July 24, 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 to dismiss:

Papers Numbered

Notice of Motion, Affirmation in Support

and Exhibits Attached 1

Claimants' Response to Defendant's Motion 2

Reply Affirmation 3

Filed Papers: Claim, Answer


1. To the extent that the Claim can be read to state a cause of action for negligence, the incident, and hence the accrual date, occurred on August 22, 2016. Defendant asserts that, in that case, the Claim would have had to have been filed and served even earlier, on November 20, 2016 (id., 7).