New York State Court of Claims

New York State Court of Claims
COUTURE v. THE STATE OF NEW YORK, # 2019-040-091, Claim No. 130323, Motion No. M-94282

Synopsis

Motion to withdraw as counsel granted.

Case information

UID: 2019-040-091
Claimant(s): LYNN MICHAEL COUTURE
Claimant short name: COUTURE
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 130323
Motion number(s): M-94282
Cross-motion number(s):
Judge: CHRISTOPHER J. McCARTHY
Claimant's attorney: ABDELLA LAW OFFICES
By: Robert Abdella, Esq.
Defendant's attorney: LETITIA JAMES
Attorney General of the State of New York
By: Sean B. Virkler, Esq., AAG
Third-party defendant's attorney:
Signature date: September 13, 2019
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 Claimant's failure to timely file and serve the Claim as required by Court of Claims Act 10(3) and 11(a)(i), is granted. The remainder of the Motion is denied as moot.

This Claim, which was filed in the office of the Clerk of the Court on September 28, 2017, asserts that, on June 29, 2017 at about 3:30 p.m., Claimant was a pedestrian on the sidewalk at the Mohawk Travel Plaza rest area eastbound located on the New York State Thruway, when he fell as a result of the negligence of the State in maintaining the sidewalk. It is asserted that the concrete sidewalk near the entrance to the restroom was not reasonably safe in that there were holes in the sidewalk, missing pieces of concrete, and deterioration of the sidewalk.

Pursuant to the Court of Claims Act provisions applicable to personal injury actions, Claimant was required to file and serve his 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 with the office of the Clerk of the Court and served upon the Attorney General within two years after the accrual of the Claim (Court of Claims Act 10[3]). In either case, Claimant was required to initiate action within 90 days of the Claim's accrual.

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.

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 in the office of the Clerk of the Court on November 6, 2017, Defendant asserted as its Sixth Affirmative Defense that "[t]his Court lacks subject matter jurisdiction over the [C]laim as it was not filed with the Clerk of the Court of Claims within ninety (90) days of accrual, or where a proper Notice of Intention to File a Claim has been timely and properly served, within two (2) years of accrual, as required by Sections 10 (3) and 11 (a) of the Court of Claims Act," and as its Seventh 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 Claim is untimely in that neither the [C]laim nor a Notice of Intention was served within ninety (90) days of accrual of the [C]laim as required by Court of Claims Act Section 11 and Court of Claims Act Section 10(3)... ."

In his affirmation submitted in support of the State's Motion, Defense counsel asserts that the Claim accrued on June 29, 2017, and that the Claim was filed with the Clerk of the Court on September 28, 2017, and served upon the Office of the Attorney General on September 29, 2017 (Affirmation of Sean B. Virkler, Esq., Assistant Attorney General [hereinafter, "Virkler Affirmation"], 3, 5, and Ex. A attached). Defendant asserts that the Claim was filed with the office of the Clerk of the Court one day late and served upon Defendant two days late (id., 5). In opposition to Defendant's Motion, Claimant does not controvert that the Claim was filed and served late.

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), and 11(a)(i). The remainder of the Motion is denied as moot.

September 13, 2019

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

Affidavit in Opposition and Exhibits

Attached 2

Defendant's Reply Affirmation 3

Filed Papers: Claim, Answer