Defendant's motion to dismiss claim (133921) in lieu of answering is denied where claim served more than eight (8) years after accrual is entitled to benefit of tolling effect of CPLR 205 (a) regarding previously dismissed claim (120304) for lack of subject matter jurisdiction based on failure to comply with pleading requirements of Court of Claims Act 11 (b).
|Claimant short name:||FLOWERS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANK P. MILANO|
|Claimant's attorney:||ANTHONY FLOWERS
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
By: Glenn C. King, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||August 6, 2020|
|See also (multicaptioned case)|
Defendant moves to dismiss the claim (133921), in lieu of answering, as jurisdictionally defective pursuant to the time limitations set forth in Court of Claims Act § 10 and because the claim, previously commenced and dismissed under claim 120304 for failure to comply with pleading requirements of Court of Claims Act 11 § (b), due to lack of verification, is not entitled to the tolling effect of CPLR 205 (a).
Claimant opposes the defendant's motion to dismiss the claim.
The prior claim (120304) accrued on July 2, 2011 and was timely served on defendant on September 2, 2011 but was dismissed for failure to comply with the pleading requirements of Court of Claims Act § 11 (b) because the claim was not verified. The Court's Decision and Order dismissing the prior claim (120304) pursuant to defendant's oral application at trial on May 31, 2017, filed on September 21, 2017, was affirmed on appeal (Flowers v State of New York, 175 AD3d 1724 [3d Dept September 26, 2019]).
Significantly, the Flowers court found that "[c]laimant's failure to verify the claim  deprived the Court of Claims of subject matter jurisdiction" (Flowers, 175 AD3d at 1726). (Emphasis added).
The present claim (133921) was served on the Attorney General on November 6, 2019.
The claim alleges both intentional and negligent conduct on defendant's part and, in either case, the claim was required to be served and filed within ninety days of its accrual (Court of Claims Act §§ 10  and [3-b]).
Courts have consistently held that "[a]s a condition of the State's limited waiver of sovereign immunity, those requirements [timely filing and service] are strictly construed and a failure to comply therewith is a jurisdictional defect compelling the dismissal of the claim" (Welch v State of New York, 286 AD2d 496, 497-498 [2d Dept 2001]; see Robinson v State of New York, 38 AD3d 1030 [3d Dept 2007]; Pizarro v State of New York, 19 AD3d 891, 892 [3d Dept 2005], lv denied 5 NY3d 717 ).
The present claim (133921) was served more than eight (8) years after its accrual and the Court lacks jurisdiction over the claim unless, as suggested by claimant, the claimant's time to serve the claim was tolled by CPLR 205 (a), which provides as follows:
"New action by plaintiff. If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff, or, if the plaintiff dies, and the cause of action survives, his or her executor or administrator, may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period. Where a dismissal is one for neglect to prosecute the action made pursuant to rule thirty-two hundred sixteen of this chapter or otherwise, the judge shall set forth on the record the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation." (Emphasis added).
The Court of Appeals, in Dreger v New York State Thruway Authority (81 NY2d 721, 723 ), has determined that CPLR 205 (a) applies to Court of Claims practice:
"The Court of Claims Act contains no recommencement provision of its own, but section 10 (6) expressly incorporates the time limitations and tolling provisions of CPLR article 2, and section 9 (9) requires that Court of Claims practice follow Supreme Court practice, unless other provisions are expressly made. Thus, these actions may be recommenced if they qualify for recommencement under CPLR 205 (a)."
Bank of New York Mellon v Slavin (156 AD3d 1073, 1074 [3d Dept 2017], lv dismissed 33 NY3d 1128 ), instructs that "[f]or purposes of CPLR 205(a), the commencement of the six-month period begins when the action is finally terminated, generally when all appeals as of right have been exhausted."
Here, the six-month recommencement period applicable to CPLR 205 (a) commenced on September 26, 2019 when claimant's appeal as of right terminated.
In Signature Health Center, LLC v State of New York (42 AD3d 678 [3d Dept 2007]), the court held that the six-month recommencement period provided by CPLR 205 (a) applies to a second claim where the first claim was timely filed and served but was dismissed "as jurisdictionally defective for failure to comply with the substantive pleading requirements of Court of Claims Act § 11 (b)" (Signature, 42 AD3d at 678).
Here, the initial claim (120304) was timely served but was dismissed, by the Court's Decision and Order, filed on September 21, 2017, for lack of subject matter jurisdiction based on the claim's failure to comply with the substantive pleading requirements of Court of Claims Act § 11 (b), specifically, for lack of verification.
The present claim (133921) was served on the defendant on November 6, 2019, within six months of the termination of the prior claim (120304) on September 26, 2019.
The new action (claim 133921) would have been timely if it had been commenced at the time of commencement of the prior action (claim 120304) on September 2, 2011 and service upon defendant of claim 133921 was effected within the six-month statutory recommencement period after dismissal of claim 120304 on September 26, 2019.
The defendant argues that CPLR 205 (a) relief is "not available when, as here, the initial claim was dismissed for lack of personal jurisdiction over defendant." The defendant's argument is unavailing because the Flowers court, which affirmed this Court's dismissal of the prior claim (120304), found that "[c]laimant's failure to verify the claim  deprived the Court of Claims of subject matter jurisdiction" (Flowers, 175 AD3d at 1726). The prior action was not dismissed for lack of personal jurisdiction.
The defendant further argues that because claim 120304 was unverified and treated as a "nullity" it cannot serve as a basis to demonstrate that "the new action  would have been timely commenced at the time of commencement of the prior action  and that service upon defendant is effected within such six-month period" (CPLR 205 [a]).
The defendant cites two Court of Claims cases in support of its argument: Jones v State of New York (#2002-018-172, Claim No. 105792, Motion Nos. M-65003, CM-65106 [Ct Cl, Fitzpatrick, J., December 11, 2002]) and Taylor v State of New York (#2007-043-014, Claim No. 113207, Motion No. M-73477 [Ct Cl, Soto, J., July 9, 2007]).
This Court is not persuaded by the cited cases since both of the Court of Claims cases relied upon by defendant were decided prior to the controlling opinion of the Appellate Division, Third Department, in the Signature case, cited above.
The Court further notes that defendant's characterization of the prior claim as a "nullity" while rejecting it for lack of verification is not dispositive of the Court's consideration of the applicability of CPLR 205 (a):
"[R]esolution is not aided by frequent use of the term "nullity". As is often true, overbroad language serves only to becloud the issues. Simplistic analysis founded on catchwords presumed to have some talismanic significance may lead to speedy resolution of disputes; the appropriateness of resolutions so derived, however, is a function of chance, not reason. Stripped of all circumlocution, defendant's argument is truly circular: defendant would have us hold that since the prior action was properly dismissed, it was a nullity, and thus not an action, and hence no subsequent action may be commenced pursuant to CPLR 205 (subd. (a)). Acceptance of this argument would lead inevitably to the conclusion that the statute is effective only in those few cases in which the prior action should not have been dismissed; in all other cases, having been properly dismissed, for whatever reason, it must be deemed a 'nullity'. To so read the statute would be to strip it of a major part of its designated role" (George v Mt. Sinai Hosp., 47 NY2d 170, 176 )
As set forth above, claimant commenced a timely prior claim (120304) based on "the same transaction or occurrence or series of transactions or occurrences" (CPLR 205 [a]) as the present claim (133921) and the prior claim was dismissed for lack of subject matter, rather than personal, jurisdiction because the prior claim was unverified and thus, failed to comply with the pleading requirements of Court of Claims Act § 11 (b).
The tolling provision of CPLR 205 (a) is applicable to the commencement of the present claim and the claim was timely served pursuant to Court of Claims Act § 10.
The defendant's motion to dismiss the claim is denied.
August 6, 2020
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
1. Defendant's Notice of Motion to Dismiss, filed December 12, 2019;
2. Affirmation of Glenn C. King, dated December 13, 2019, and attached exhibits;
3. Claimant's unsworn "Answer to Defendant's Motion to Dismiss," dated December 20, 2019.