Defendant's motion to dismiss the claim on the ground the claim was untimely due to the improper service of the notice of intention was granted and the claim dismissed. Claimant's cross motion to convert its notice of intention to a claim or, in the alternative, file a late claim was denied as the notice of intention was not properly served and claimant failed to submit an affidavit from someone with knowledge of the facts or a proposed verified claim.
|Claimant(s):||PROGRESSIVE DIRECT INSURANCE COMPANY as subrogee of JULIE CARROLL|
|Claimant short name:||PROGRESSIVE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The caption has been amended sua sponte to reflect the only properly named defendant.|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Feldman & Feldman, LLP
By: Jodi P. Feldman, Esq.
|Defendant's attorney:||Honorable Letitia James, Attorney General
By: Belinda A. Wagner, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||May 6, 2020|
|See also (multicaptioned case)|
Defendant moves to dismiss the claim pursuant to CPLR 3211 (a) (2), (7) and (8) and CPLR 321. Claimant, Progressive Direct Insurance Company (hereinafter Progressive or claimant), as subrogee of its insured Julie Carroll, opposes the motion and cross-moves "for permission to file a late Notice of Intention to [F]ile a Claim and/or file a late claim, or in the alternative deem the Notice of Intention served October 31, 2018 and received on November 6, 2018, properly and timely served" (claimant's Notice of Cross Motion).
Progressive, as subrogee of Julie Carroll, filed a claim on October 24, 2019 seeking payment for property damage to its insured's motorcycle allegedly caused by the negligence or reckless conduct of the State of New York through the ownership and operation of a motor vehicle operated by a New York State Trooper on August 24, 2018. On October 31, 2018 Progressive sent two documents to the Attorney General's office by certified mail, one entitled Notice of Intent to File Claim and the other entitled Claim (see defendant's Exhibit A, doc. # 8 on NYSCEF; claimant's Exhibit 2, doc. #16 on NYSCEF). The Notice of Intent was signed by one of Progressive's claims representatives before an Ohio Notary Public on October 31, 2018. It is undisputed that these documents were received in the Attorney General's office on November 6, 2018 (id.). Thereafter a document entitled Verified Claim (dated Sept. 28, 2019 [defendant's Exhibit B, doc. # 1 and # 9 on NYSCEF]) was personally served on the defendant at the Office of the Attorney General on November 8, 2019 (see Affirmation of Belinda A. Wagner, dated Dec. 12, 2020, ¶ 5; Affidavit of Service filed as doc. #4 on NYSCEF).
In support of its dismissal motion, defendant contends that service of the Notice of Intent by certified mail, without a return receipt, was ineffective to extend the period in which to serve and file a claim, and the claim filed on October 24, 2019 and served on November 8, 2019 is therefore untimely. Defendant also contends that the Notice of Intent was ineffective because it was signed only by a claims representative of Progressive.
In opposition to defendant's motion, claimant's counsel contends that the document(s) sent on October 31, 2018, and received in the Office of the Attorney General on November 6, 2018, was a notice of intention, not a claim, and it was served by certified mail, return receipt requested. To support this contention, claimant's counsel submits a USPS tracking receipt indicating delivery of an item on November 6, 2018. Claimant's counsel contends, therefore, that the notice of intention was properly and timely served within 90 days of accrual of the claim on August 24, 2018, and the claim filed on October 24, 2019 and served on November 8, 2019 was timely, having been filed and served within two years of the date the claim accrued (citing Court of Claims Act § 10 ).
Court of Claims Act § 10 (3) requires that an unintentional tort claim be filed and served upon the attorney general within ninety days after the accrual of the claim unless a notice of intention to file a claim is served within that same time period, "in which event the claim shall be filed and served upon the attorney general within two years after the accrual of such claim." Court of Claims Act § 11 (a) requires that a notice of intention be served upon the Attorney General either personally or by certified mail, return receipt requested, within the times provided in Court of Clams Act § 10. Since the filing requirements of the Court of Claims Act are jurisdictional in nature, they must be strictly construed (Encarnacion v State of New York, 112 AD3d 1003 [3d Dept 2013]; Femminella v State of New York, 71 AD3d 1319 [3d Dept 2010]; Bush v State of New York, 60 AD3d 1244, 1245 [3d Dept 2009]; Fulton v State of New York, 35 AD3d 977 [3d Dept 2006], lv denied 8 NY3d 809 ; Govan v State of New York, 301 AD2d 757 [3d Dept 2003], lv denied 99 NY2d 510 ).
Defendant established through the submission of the envelope in which the notice of intention was mailed that it was sent by certified mail without a request for a return receipt. While the envelope contains indicia of a certified mailing, it contains no indication that it was sent with a return receipt (defendant's Exhibit A, doc. # 8 on NYSSCEF, last two pages). Claimant failed to refute defendant's showing either through the submission of a signed return receipt card or an affidavit of service of the individual who allegedly mailed the notice of intention. Claimant's counsel's contrary representation is not supported by the tracking receipt he proffers or any other facts in the record. Rather, the USPS tracking receipt merely confirms the date of delivery, but nothing more (claimant's Exhibit 2, doc. # 16). Inasmuch as service of a notice of intention by certified mail, without a return receipt, fails to strictly comply with the requirements of Court of Claims Act § 11 (a) (i) (see Urvashi v The State of New York, Ct Cl, Jan. 9, 2017, Lopez-Summa, J., claim No. 127898, UID No. 2017-045-002; Vittor v The State of New York, Ct Cl, Dec. 14, 2015, Sampson, J., claim No. 124628, UID No. 2015-053-526; Squitieri v The State of New York, Ct Cl, Oct. 30, 2014, Collins, J., claim No. 123908, UID No. 2014-015-025; Chandler v State of New York, Ct Cl, June 6, 2014, DeBow, J., claim No. 118447, UID No. 2014-038-526), the notice of intention was a nullity and did not extend the time to serve and file the claim.(2) Having properly preserved its objection to both the manner of service of the notice of intention and the timeliness of the claim by way of the instant pre-answer dismissal motion (see Court of Claims Act § 11 [c]), the motion is granted and the claim is dismissed.
Turning to claimant's cross motion to file a late notice of intention or a late claim, or to deem the previously served notice of intention a claim, the request must be denied. Service of a notice of intention to file a claim is not a condition precedent to the filing of a claim and the Court of Claims Act contains no provision allowing an extension of the time to do so. Moreover, because the notice of intention was improperly served, it is jurisdictionally defective and may not be treated as a claim under Court of Claims Act § 10 (8). Progressive's remaining request to file a late claim pursuant to Court of Claims Act § 10 (6) is therefore the sole available remedy at this juncture.
The first issue for determination upon a late claim motion is whether the application is timely. Court of Claims Act § 10 (6) requires that a motion to file a late claim be made "before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules." Here, the motion was timely filed within three years of the date the cause of action accrued and is therefore timely (CPLR 214).
Court of Claims Act § 10 (6) permits this Court to allow the filing of a late claim, if the applicable statute of limitations set forth in article 2 of the CPLR has not expired, upon consideration of the following factors: "whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy." Although the statutory factors are not exhaustive and no one factor is controlling (Matter of Martinez v State of New York, 62 AD3d 1225, 1226 [3d Dept 2009]; Edens v State of New York, 259 AD2d 729, 730 [2d Dept 1999]), the most important factor is whether the potential claim has merit, as it would be a futile exercise to permit litigation of a clearly baseless lawsuit (Mattter of Barnes v State of New York, 158 AD3d 961, 962 [3d Dept 2018]; Matter of Martinez, 62 AD3d 1225; Savino v State of New York, 199 AD2d 254 [2d Dept 1993]). Here, claimant failed to demonstrate the potential merit of its claim as the facts of the underlying accident were not set forth in an affidavit of someone with personal knowledge, the filed claim is not verified or signed by anyone with personal knowledge of the facts, and the police report is not in admissible form. Nor did claimant support its motion with a proposed claim as required (Court of Claims Act § 10 ). As a result, the cross motion must be denied.
Based on the foregoing, defendant's motion is granted and the claim is dismissed. Claimant's cross motion is denied with leave to renew upon an appropriate showing.
May 6, 2020
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
1. Notice of cross-motion dated February 12, 2020;
2. Affirmation in opposition to respondent's motion dated February 12, 2020;
3. Defendant's reply affirmation dated February 24, 2020;
4. Claimant's reply affirmation dated March 2, 2020.
2. In light of this determination, the Court need not address defendant's alternative argument that the notice of intention is a nullity because Progressive is a corporate entity and, as such, prohibited from self-representation under CPLR 321 (a).