New York State Court of Claims

New York State Court of Claims
MAGNO v. THE STATE OF NEW YORK, # 2019-053-543, Claim No. 131696, Motion No. M-94203

Synopsis

The State's motion to dismiss the claim for lack of jurisdiction is granted and the claim is dismissed. Claimant's counsel did not file a notice of intention and filed and served the claim more than 90 days after accrual.

Case information

UID: 2019-053-543
Claimant(s): CHARLES MAGNO, as GUARDIAN of the Person and Property of FRANCINE MAGNO
Claimant short name: MAGNO
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 131696
Motion number(s): M-94203
Cross-motion number(s):
Judge: J. DAVID SAMPSON
Claimant's attorney: THE LAW OFFICES OF FRANK M. BOGULSKI
BY: Frank M. Bogulski, Esq.
Defendant's attorney: HON. LETITIA JAMES
New York State Attorney General
BY: Carlton K. Brownell, III, Esq.
Assistant Attorney General
Third-party defendant's attorney:
Signature date: September 11, 2019
City: Buffalo
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant Charles Mango as Guardian of Francine Magno seeks damages in claim no. 131696 for personal injuries sustained by Francine Magno on February 6, 2017, June 26, 2017 and October 11, 2017, allegedly due to the negligence of the defendant.(1) Defendant State of New York now moves to dismiss the claim for lack of jurisdiction. Claimant failed to appear or otherwise oppose defendant's motion.

Court of Claims Act 10 (3) provides that a claim for damages based on negligence must be filed and a copy served upon the Attorney General within ninety (90) days of accrual of the claim unless within the same ninety (90) day period, the claimant serves upon the Attorney General a notice of intention to file a claim, in which event the claim must be filed and served within two (2) years of accrual of the claim.

The filing and 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 [1992]; Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]). The failure to comply with the filing and service requirements of the Court of Claims Act deprives the Court of jurisdiction, requiring dismissal of the claim (Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]; Byrne v State of New York, 104 AD2d 782 [2d Dept 1984], lv denied 64 NY2d 607 [1985]). Defendant asserts that neither a notice of intention nor a claim was served upon the Attorney General within ninety (90) days after accrual of the claim. These affirmative defenses were raised with particularity by the defendant in its answer as required by Court of Claims Act 11 (c ) (Defendant's Exhibit C).

According to the claim (Defendant's Exhibit A) and claimant's bill of particulars (Defendant's Exhibit E), claimant is seeking damages for injuries allegedly sustained on three separate occasions: February 6, 2017, June 26, 2017 and October 11, 2017. In order to be timely, a claim based on the alleged negligence of the defendant of February 6, 2017 had to be filed and a copy served upon the Attorney General within ninety (90) days of accrual or by May 8, 2017(2) . A claim based on the alleged negligence of the defendant of June 26, 2017 had to be filed and a copy served by September 25, 2017(3) and a claim based on an alleged negligent act of October 11, 2017 had to be filed and served by January 9, 2018.

Attached to defendant's motion as Exhibit B is a copy of a letter from the Chief Clerk of the Court of Claims indicating that claim no. 131696 was filed on July 11, 2018, more than ninety (90) days after accrual of any of the negligent acts alleged in the claim. Defendant also attaches to its motion as Exhibit A a copy of the claim indicating that it was served upon the Attorney General's Office on July 18, 2018, more than ninety (90) days after accrual of any of the negligent acts alleged in the claim. No notice of intention to file a claim was apparently served and claimant failed to appear or offer any evidence to contradict the dates of filing and service. Inasmuch as neither a notice of intention was served nor a claim was served or filed within ninety (90) days after accrual of any of the negligent acts alleged in the claim, the claim is jurisdictionally defective and must be dismissed (Torres v State of New York, 107 AD3d 1471 [4th Dept 2013]).

Accordingly, defendant's motion no. M-94203 is granted and claim no. 131696 is dismissed.

September 11, 2019

Buffalo, New York

J. DAVID SAMPSON

Judge of the Court of Claims

The following were read and considered by the Court:

1. Notice of motion and affirmation of Assistant Attorney General Carlton K. Brownell, III, Esq. dated June 7, 2019, with annexed Exhibits A-F.


1. As originally filed, claim no. 131696 was brought against Aspire of WNY and We Care Transportation in addition to the State of New York. By prior Decision and Order, this Court dismissed the claim as against Aspire of WNY and We Care Transportation as non-state entities over which this Court does not have jurisdiction (see Magno v Aspire of WNY, et al, UID No. 2019-053-508 [Ct Cl, Sampson, J., Feb. 8, 2019]; Defendant's Exhibit F).

2. The 90th day after accrual of a February 6, 2017 negligent act was a Sunday. Thus, claimant had until the next business day, Monday, May 8, 2017, to file and serve a notice of intention or a claim (General Construction Law 25-a [1]).

3. The 90th day after accrual of a June 26, 2017 negligent act was a Sunday. Thus, claimant had until the next business day, Monday September 25, 2017, to file and serve a notice of intention or a claim (General Construction Law 25-a [1]).