Claim is dismissed where Court lacks jurisdiction over claim which fails to adequately state the nature of the claim, as required by Court of Claims Act § 11 (b), and the claim was untimely filed and served.
|Claimant short name:||FIGAT|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The caption is amended to state the proper defendant.|
|Judge:||FRANK P. MILANO|
|Defendant's attorney:||HON. BARBARA D. UNDERWOOD
New York State Attorney General
By: Paul F. Cagino, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 28, 2018|
|See also (multicaptioned case)|
Defendant moves to dismiss the claim which appears to allege a conspiracy between the New York State Department of Motor Vehicles, Suffolk County and claimant's former husband to engage in fraud, negligence, identity theft and other acts against claimant with respect to claimant's driver's license and social security number. The claim allegedly accrued on March 17, 2004 and was "revealed" to claimant in 2011. The claim was served on the Attorney General on August 6, 2018 and filed with the Clerk of the Court of Claims on August 8, 2018.
Claimant has not appeared in opposition to the defendant's motion to dismiss the claim.
Defendant argues that the claim fails to set forth the nature of the claim as required by Court of Claims Act 11 (b), thus depriving the Court of jurisdiction and further asserts that the claim is untimely.
Court of Claims Act 11 (b) provides that:
"The claim shall state the time when and place where such claim arose, the nature of same, the items of damage or injuries claimed to have been sustained and, except in an action to recover damages for personal injury, medical, dental or podiatric malpractice or wrongful death, the total sum claimed."
The claim alleges an incoherent amalgam of purported schemes and conspiracies against claimant, over a period of decades, perpetrated by claimant's former husband, Suffolk County and the New York State Department of Motor Vehicles.
A claim against the State is permissible only as a result of the State's waiver of sovereign immunity and the statutory requirements conditioning suit must therefore be strictly construed (Kolnacki v State of New York 8 NY3d 277, 280 ). The Kolnacki court noted that the requirements of section 11 (b) are "substantive conditions upon the State's waiver of sovereign immunity" (quoting Lepkowski v State of New York, 1 NY3d 201, 207 ) and that the failure to satisfy any of the conditions is a jurisdictional defect (Kolnacki, 8 NY3d at 280-281). The Kolnacki decision stresses that "nothing less than strict compliance with the jurisdictional requirements of the Court of Claims Act is necessary" (Kolnacki, 8 NY3d at 281).
The strict pleading requirements of Court of Claims Act 11 (b) were reiterated in Rivera v State of New York (52 AD3d 1075 [3d Dept 2008]):
"Statutory conditions placed on claims against defendant must be strictly construed, mandating a dismissal for lack of jurisdiction if the claim does not meet the substantive pleading requirements found in Court of Claims Act § 11 (b)."
The Rivera court, quoting Lepkowski (1 NY3d at 208) reminded that:
"The Court of Claims Act does not require [defendant] to ferret out or assemble information that section 11 (b) obligates the claimant to allege."
The claim is "a rambling jumble of allegations from which it is impossible to discern the conduct for which the claimant seeks to hold the State of New York liable. Moreover, the vague and disjointed allegations in the claim render the timeliness of the claim or possible defenses thereto impossible to determine" (Praileau v The State of New York, UID# 2011-015-255, Claim No. 119286, Motion Nos. M-79846, M-79976 M-79846, M-79976 [Ct Cl, Milano, J, August 18, 2011]).
Claimant has failed to comply with the substantive pleading requirements of section 11 (b) of the Court of Claims Act and the Court therefore lacks jurisdiction over the claim.
Additionally, the Court lacks jurisdiction over the claim because it was filed and served more than ninety days after its stated accrual. Court of Claims Act 10 (3) and (3-b), respectively, each require that a claim to recover damages caused by the tortious conduct of an employee of the state, whether the defendant's conduct was intentional or unintentional, be served and filed within ninety days after the accrual of the claim.
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 was not filed or served withn ninety days of its stated accrual and claimant has failed to comply with the "strictly construed" (Welch, 286 AD2d at 497-498) filing and service requirements set forth in the Court of Claims Act.
The defendant's motion to dismiss the claim is granted. The claim is dismissed.
November 28, 2018
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
1. Defendant's Notice of Motion to Dismiss in Lieu of Answer, filed September 18, 2018;
2. Affirmation of Paul F. Cagino, dated September 17, 2018, and attached exhibit.