By Order to Show Cause, the Court ordered the parties to submit statements regarding service of the claim as no answer was ever filed. The State established that no claim was ever served upon the Attorney General, which deprives this Court of jurisdiction and requires dismissal of the claim. In addition, even if properly served, the Court would dismiss the claim as there is no subject matter jurisdiction over a claim brought against the Niagara Frontier Transportation Authority (NFTA). Actions against the NFTA are governed by Public Authorities Law 1299-e, which does not confer jurisdiction upon the Court of Claims.
|Claimant(s):||GEICO a/s/o JETER NEVILLE|
|Claimant short name:||GEICO|
|Footnote (claimant name) :|
|Defendant(s):||NIAGARA FRONTIER TRANSP. AUTH. and CHARLES H. BOYKIN|
|Footnote (defendant name) :|
|Judge:||J. DAVID SAMPSON|
|Claimant's attorney:||LAW OFFICE OF BRYAN M. KULAK|
|Defendant's attorney:||HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
BY: Wendy E. Morcio, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||May 2, 2018|
|See also (multicaptioned case)|
On July 13, 2017, GEICO as subrogee of Jeter Neville filed claim no. 129975 in the Court of Claims for property damage to its insured's vehicle which allegedly occurred on April 17, 2017 when a bus owned by the Niagara Frontier Transportation Authority and driven by Charles H. Boykin struck its insured's vehicle. No answer to the claim was ever filed, thereby raising jurisdictional concerns. By Order to Show Cause filed January 29, 2018, this Court ordered the parties to submit statements regarding service of the claim.
In order to commence an action in the Court of Claims, a claim must be filed and a copy served personally or by certified mail, return receipt requested, upon the Attorney General within ninety (90) days of accrual of the claim, unless within the same time period a notice of intention to file a claim is served, in which event the claim must be filed and served within two years of accrual (Court of Claims Act §§ 10  and 11 [a] [i]). The service requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Dreger v New York State Thruway Auth., 81 NY2d 721 ; Finnerty v New York State Thruway Auth., 75 NY2d 721 ). The failure to serve a notice of intention or a copy of the claim upon the Attorney General deprives the court of jurisdiction requiring dismissal of the claim (Torres v State of New York, 107 AD3d 1471 [4th Dept 2013]; Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]).
Claimant did not respond to the Court's Order to Show Cause. Assistant Attorney General Wendy E. Morcio submitted the affidavit of Debra L. Mantell, a legal assistant II in the Albany Office of the Attorney General. According to the affidavit of Ms. Mantell, two separate searches of the case management system were conducted and they disclosed no record that the Attorney General had ever been served with a notice of intention to file a claim or with a claim by GEICO as subrogee of Jeter Neville. Failure to comply with the service requirements of the Court of Claims Act deprives the court of jurisdiction, requiring dismissal of the claim (Torres v State of New York, supra).
Even if the claim had been properly served, it would still have to be dismissed as this Court does not have subject matter jurisdiction over the claim. Subject matter jurisdiction is non-waivable and may be considered sua sponte (Matter of Fry v Village of Tarrytown, 89 NY2d 714 ). The Court of Claims is a court of limited jurisdiction with authority to hear claims against the State and certain public authorities (Court of Claims Act § 9). Individuals, such as defendant Charles H. Boykin cannot be sued in their individual capacity in the Court of Claims even if they are employees of the State (Smith v State of New York, 72 AD2d 937 [4th Dept 1979]).
As opposed to State Supreme Court, the Court of Claims has only that subject matter jurisdiction as has been conferred upon it by statute. When the State Legislature "has decided to confer jurisdiction over public authorities to the Court of Claims it has done so specifically by statute" (Cole v State of New York, 64 AD2d 1023, 1024 [4th Dept 1978]). Thus, for example, Public Authorities Law § 361-b specifically confers exclusive jurisdiction upon the Court of Claims to hear claims against the New York State Thruway Authority (NYSTA) for its tortious acts and for breach of contract.
The Niagara Frontier Transportation Authority (NFTA) is a public authority created by statute. The purpose of the NFTA is "the continuance, further development and improvement of transportation and other services related thereto within the Niagara Frontier transportation district . . ." (Public Authorities Law § 1299-d). The NFTA has the express power to sue and be sued (Public Authorities Law § 1299-e). This type of express power has been held to implicitly confer jurisdiction of tort claims in courts of general jurisdiction, not the Court of Claims (Gembala v Audobon Assn., 97 AD2d 345 [4th Dept 1983 ]; Town of Amherst v Niagara Frontier Port Auth., 19 AD2d 107 [4th Dept 1963]; Prime Energy Solutions, Inc. v State of New York, 20 Misc 3d 750 [Ct Cl 2008]). Actions against the NFTA are governed by Public Authorities Law § 1299-p. Nothing in this section confers jurisdiction over actions against the NFTA upon the Court of Claims. Further, subsection 2 requires tort actions to comply with section 50-e of the General Municipal Law. This also indicates that an action against the NFTA must be commenced in Supreme Court (Maybe v State of New York, UID No. 2002-031-008 [Ct Cl, Minarik, J., Mar. 18, 2002]; Hampton v State of New York, 168 Misc 2d 1036 [Ct Cl 1995]; Pandolph v State of New York, 155 Misc 2d 612 [Ct Cl 1992]). Thus, any claim against the NFTA and Charles H. Boykin lies, if at all, in Supreme Court and not against the NFTA or the State of New York in the Court of Claims. Without subject matter jurisdiction, this claim must be dismissed.
Based on the foregoing, claim no. 129975 is dismissed.
May 2, 2018
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims
The following were read and considered by t he Court:
1. Order to Show Cause dated Jan. 10, 2018; and
2. Affidavit of Assistant Attorney General Wendy E. Morcio sworn to March 13, 2018, with annexed Exhibit A.