New York State Court of Claims

New York State Court of Claims
ROWE v. CITY UNIVERSITY OF NEW YORK, # 2018-054-054, Claim No. 131113, Motion No. M-92123

Synopsis

claim dismissed for failure to serve CUNY and A.G.

Case information

UID: 2018-054-054
Claimant(s): JAMES ROWE
Claimant short name: ROWE
Footnote (claimant name) :
Defendant(s): CITY UNIVERSITY OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 131113
Motion number(s): M-92123
Cross-motion number(s):
Judge: WALTER RIVERA
Claimant's attorney: SACKS AND SACKS, LLP
Defendant's attorney: HON. BARBARA D. UNDERWOOD
Attorney General for the State of New York
By: Lawrence E. Kozar, Assistant Attorney General
Third-party defendant's attorney:
Signature date: May 23, 2018
City: White Plains
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

The following papers were read and considered by the Court on defendant's unopposed motion to dismiss:

Notice of Motion, Attorney's Supporting Affirmation and Exhibit

The instant claim alleges that on November 29, 2017, claimant was injured during the course of his employment as a construction worker for Zopata Construction Inc. at the Memorial Sloan Kettering Cancer Center Building at City University of New York (CUNY) located at East 74th Street in New York City. On December 14, 2017, a copy of the claim was timely served upon CUNY. On March 12, 2018, a copy of the claim was served upon the Attorney General's office and filed with the Court.

Court of Claims Act 11 (a) (ii) provides that, in an action brought in the Court of Claims against CUNY, a copy of the claim shall be served on CUNY in addition to the attorney general, within the mandated times for service. Here, the service on March 12, 2018 of a copy of the claim upon the attorney general was not within 90 days after the accrual of the claim on November 29, 2017. Thus, service of the claim upon the attorney general was untimely.

The service requirements set forth in Court of Claims Act 10 and 11 are jurisdictional in nature and require strict compliance as a precondition of suit against the State (see Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]). A failure to comply with any of the service provisions is a jurisdictional defect compelling the dismissal of the claim (see Kolnacki v State of New York, 8 NY3d 277, 281 [2007] ["(t)he failure to satisfy any of the (statutory) conditions is a jurisdictional defect"]; Welch v State of New York, 286 AD2d 496, 497-98 [2d Dept 2001]). Both service and filing of the claim must occur within the statutory time period mandated by the Court of Claims Act (see Dreger v New York State Thruway Auth., 81 NY2d at 724).

Accordingly, defendant's unopposed motion to dismiss Claim No. 131113 is hereby GRANTED.

May 23, 2018

White Plains, New York

WALTER RIVERA

Judge of the Court of Claims