Claimant's motion for default judgment is denied; Defendant's motion to dismiss claim based upon failure to serve claim on Attorney General is granted.
|Claimant(s):||ROBERT FUENTES, JR.|
|Claimant short name:||FUENTES|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Motion number(s):||M-92152, M-92284|
|Judge:||FRANK P. MILANO|
|Claimant's attorney:||ROBERT FUENTES, JR.
|Defendant's attorney:||HON. BARBARA D. UNDERWOOD
New York State Attorney General
By: Michael Rizzo, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||July 30, 2018|
|See also (multicaptioned case)|
Claimant moves (M-92152) pursuant to CPLR 3215 for a default judgment, alleging that defendant failed to serve an answer to the claim. Defendant opposes claimant's motion and moves (M-92284) pursuant to CPLR 3211 (a) (2) to dismiss the claim. In particular, defendant asserts that the Court lacks jurisdiction because claimant failed to timely serve the claim upon the Attorney General. Claimant has not opposed the defendant's motion.
Claimant's motion for a default judgment is denied because claimant failed to move for a default judgment within one year of defendant's purported default, as required by CPLR 3215 (c):
"Default not entered within one year. If the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed. A motion by the defendant under this subdivision does not constitute an appearance in the action."
Claimant asserts that "[o]n September 30, 2014 The Attorney General was served on the Claim against The State of New York for Negligence." Assuming claimant's assertion to be true, and pursuant to the Uniform Rules for the Court of Claims (7 NYCRR 206.7), defendant was required to serve its answer within 40 days of service of the claim, or on or before November 9, 2014.
Claimant was therefore required by CPLR 3215 (c) to make his motion for a default judgment within one year of November 9, 2014, on or before November 9, 2015. Claimant did not make his motion for a default judgment until on or about April 14, 2018.
Claimant's motion for a default judgment (M-92152) is denied.
Defendant moves (M-92284) pursuant to CPLR 3211 (a) (2) to dismiss the claim, asserting that the Court lacks jurisdiction because claimant failed to serve the claim upon the Attorney General in the manner required by Court of Claims Act sections 10 and 11.
Court of Claims Act 10 (3) requires that a claim to recover damages caused by the negligent conduct of an officer or employee of the state must be served upon the Attorney General within ninety days after the accrual of the claim unless a notice of intention to file a claim is served within such ninety day period, "in which event the claim shall be filed and served . . . within two years after the accrual of such claim."
Court of Claims Act 11 (a) (i) requires that a copy of the claim be timely served upon the Attorney General either personally or by certified mail, return receipt requested.
This requirement is jurisdictional in nature:
"In order to properly commence an action in the Court of Claims, the claim must be filed with the Clerk of the Court and served upon the attorney general within the times provided for filing (see Court of Claims Act § 11 [a] [i]). Failure to comply with either the filing or service provisions of the Court of Claims Act results in a lack of subject matter jurisdiction requiring dismissal of the claim" (Tooks v State of New York, 40 AD3d 1347, 1348 [3d Dept 2007], lv denied 9 NY3d 814 ; see Finnerty v New York State Thruway Auth.,75 NY2d 721, 723 ).
Further, courts have consistently held that "[a]s a condition of the State's limited waiver of sovereign immunity, those requirements [timely filing and service] are strictly construed and a failure to comply therewith is a jurisdictional defect compelling the dismissal of the claim" (Welch v State of New York, 286 AD2d 496, 497-498 [2d Dept 2001]; see Robinson v State of New York, 38 AD3d 1030 [3d Dept 2007]; Pizarro v State of New York, 19 AD3d 891, 892 [3d Dept 2005], lv denied 5 NY3d 717 ).
The claim accrued on July 14, 2014. Defendant supports its motion to dismiss the claim with admissible proof showing that it was served with an unverified Notice of Intention to File Claim on September 30, 2014, which defendant immediately rejected pursuant to Court of Claims Act 11 (b) and CPLR 3022.
Court of Claims Act 11 (b) provides that a notice of intention to file a claim "shall be verified in the same manner as a complaint in an action in the supreme court." The Court of Appeals has interpreted the provisions of Section 11 (b) as "'substantive conditions upon the State's waiver of sovereign immunity'" (Kolnacki v State of New York, 8 NY3d 277, 280-281 , quoting Lepkowski v State of New York, 1 NY3d 201, 207 ), and instructed that "[t]he failure to satisfy any of the conditions is a jurisdictional defect" (Kolnacki at 281).
"Where a pleading is served without a sufficient verification in a case where the adverse party is entitled to a verified pleading, he [or she] may treat it as a nullity, provided he gives notice with due diligence to the . . . adverse party that he elects so to do" (CPLR 3022).
The court finds that the defendant exercised due diligence in immediately notifying the claimant that it was treating the notice of intention to file a claim as a nullity for lack of verification, as required by the provisions of CPLR Rule 3022 and Court of Claims Act 11 (b).
Defendant was next served with a verified Notice of Intention to File Claim on October 15, 2014, more than ninety days after the claim's accrual on July 14, 2014. Even assuming the verified Notice of Intention to File Claim was timely, such service would have extended claimant's time to serve his claim until July 14, 2016. Defendant was not served with the claim until May 10, 2018, nearly two years after time for such service had expired.
Claimant has not submitted opposition to the defendant's affirmation, and accompanying exhibits, offered by the defendant in support of its motion to dismiss the claim.
Defendant has provided uncontroverted documentary proof that the claim was not served on the Attorney General within the time period set forth in Court of Claims Act sections 10 and 11, as required. The defendant's motion to dismiss the claim (M-92284) is granted. The claim is dismissed.
July 30, 2018
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
1. Court's letter of April 13, 2018;
2. Claimant's Praecipe For Entry of Judgment, filed April 18, 2018;
3. Claimant's Affidavit of Services, sworn to May 7, 2018, and attached exhibits;
4. Affirmation in Opposition of Michael Rizzo, dated May 16, 2018;
5. Defendant's Notice of Motion To Dismiss in Lieu of Answer, filed May 17, 2018;
6. Affirmation of Michael Rizzo, dated May 16, 2018, and annexed exhibits.