New York State Court of Claims

New York State Court of Claims
GIORDANO v. THE STATE OF NEW YORK, # 2021-059-050, Claim No. 134982, Motion No. M-96740


Case information

UID: 2021-059-050
Claimant short name: GIORDANO
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 134982
Motion number(s): M-96740
Cross-motion number(s):
Claimant's attorney: Anthony Giordano, Esq.
By: Antonella Papaleo, Assistant Attorney General
Third-party defendant's attorney:
Signature date: September 10, 2021
City: Hauppauge
Official citation:
Appellate results:
See also (multicaptioned case)


The instant claim was filed on June 29, 2020 and served upon the Office of the Attorney General (OAG) on August 17, 2020. The claim alleges that claimant's vehicle sustained property damage when the New York State Police (NYSP) took possession of the vehicle and executed a search following a rear-end collision on January 11, 2019. Defendant moves to dismiss the claim on the grounds that (1) the claim was not timely filed pursuant to Court of Claims Act 10 (3); (2) the Court lacks subject matter jurisdiction over the federal constitutional claims; and (3) the claim fails to state a cause of action for negligent destruction of property. Claimant opposes the motion.


On January 11, 2019, claimant's 2004 Honda Minivan was rear-ended by another vehicle. At the time of the accident, claimant believed that the car was parked at his home and was unaware that anyone borrowed the vehicle. The alleged driver of the minivan was arrested and charged with violating the Vehicle and Traffic Law. The minivan was seized by the New York State Police (NYSP) and towed to a lot by Bing's Towing & Auto Body Inc. (Bing's).

Following the accident, claimant contacted the NYSP in an attempt to obtain the release of his minivan. He was unsuccessful and was also unable to retrieve any information regarding the arrest of the driver of the minivan. At some point after the accident, the NYSP questioned claimant regarding who borrowed the minivan on January 11, 2019. Claimant informed the NYSP that he did not know to whom he lent the minivan on that date.

Claimant eventually learned from the Nassau County District Attorney (NCDA) that the minivan was located at Bing's lot, but that the minivan would not be released without prior approval from the NCDA. Claimant was informed that the NCDA would not release the vehicle because the vehicle would be searched to help determine the identity of the alleged driver. At some point thereafter, claimant was allowed to retrieve the vehicle, which was now located at a NYSP lot. Claimant alleges that at the time of the accident, the minivan was operable. Claimant had a meeting with an assistant district attorney from the NCDA's office on an unspecified date wherein claimant was shown pictures of the minivan and observed extensive damage. When claimant was finally allowed to retrieve the vehicle, the NYSP informed claimant that the minivan was inoperable and would need to be towed to a repair facility. Claimant alleges that, while the minivan sustained minor damage during the January 11, 2019 accident, defendant further damaged the minivan by performing a "highly destructive" search (Verified Claim 2).

LAW AND DISCUSSION "A claimant seeking to recover damages for personal injuries caused by the negligence, intentional tort or unintentional tort of an officer or employee of the State must file and serve a claim or, alternatively, a notice of intention to file such a claim, upon the Attorney General within 90 days after the accrual thereof" (Maude V. v New York State Off. of Children & Family Servs., 82 AD3d 1468, 1469 [3d Dept 2011]; see Court of Claims Act 10 [3], [3-b]).

Defendant argues that the claim should be dismissed for claimant's failure to serve the claim within 90 days of the stated accrual date. Defendant alleges that the claim accrued on January 11, 2019--the date that the NYSP seized claimant's minivan. Thus, claimant was required to file and serve a claim or serve a notice of intention to file a claim no later than April 11, 2019. Claimant argues that the claim did not accrue on January 11, 2019. Claimant was unaware of the "full extent" of the damage done to the minivan until August 8, 2020, when the vehicle was returned to claimant (Aff. in Opp., 4-5). Claimant further admits that the exact date that defendant allegedly damaged the minivan is unknown to claimant (id., 5).

Claimant's argument that the continuous violation doctrine applies to extend the accrual date is incorrect. The continuous violation doctrine is applicable only where a cause of action is "predicated on continuing unlawful acts and not on the continuous effects of earlier unlawful conduct" (Selkirk v State of New York, 249 AD2d 818, 819 [3d Dept 1998] [emphasis added]; see Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687, 688 [3d Dept 2000]). The claim alleges that the minivan was seized by the NYSP on January 11, 2019, and that at an unknown date following January 11, 2019, the NYSP executed a search of the minivan and damaged the minivan during said search. These discrete acts do not warrant application of the continuous violation doctrine. The well-settled New York rule is that a cause of action accrues, and the statute of limitations begins to run, upon the happening of the wrong, not the plaintiff's discovery of the injury (Vincent C. Alexander, Practice Commentaries, McKinney's Cons Laws of NY, CPLR C203:1). In other words, the general rule in New York practice is that a cause of action accrues on the date of injury regardless of when the injury is discovered (Siegel, NY Prac 43 [6th ed.], citing Ely-Cruikshank Co. v Bank of Montreal, 81 N.Y.2d 399 [1993]). "A claim accrues for purposes of the Court of Claims Act when damages are reasonably ascertainable" (Flushing Natl. Bank v State of New York, 210 AD2d 294, 294 [2d Dept 1994], affirming 156 Misc2d 979 [Ct. Cl. 1992], lv denied 86 NY2d 706 [1995]). As stated by Judge Judith A. Hard in 397 Realty LLC v State of New York, UID No. 2017-032-013 [Ct Cl, Mar. 20, 2017]:

"[A] claim becomes enforceable 'when all elements of the cause of action can be truthfully alleged, 'even though the injured party may be ignorant of the existence of the wrong or injury' when that moment occurs" (Thomas v State of New York, UID No. 2007-028-550 [Ct Cl, Sise, J., July 5, 2007], quoting Schmidt v Merchants Despatch Transp. Co., 270 NY 287, 300 [1936]; see Kronos, Inc. v AVX Corp., 81 NY2d 90, 94 [1993]; Wray v State of New York, 46 Misc 3d 1204 [A] [Ct Cl, Marin, J., Nov. 18, 2014]). Exceptions to this rule are set forth explicitly by statute and encompass such actions where the belated discovery of an injury is inherent in the nature of the tort, such as exposure to a toxic substance or a foreign object left inside a patient during surgery (see Matter of Barresi v State of New York, 232 AD2d 962, 963-964 [3d Dept 1996]; see e.g. CPLR 214-a, 214-b, 214-c). Notably, "[t]he Court of Appeals has held that the discovery rule should not be extended beyond the limited instances provided for by the Legislature" (Matter of Barresi v State of New York, [supra] at 963; see Matter of Steinhardt v Johns-Manville Corp., 54 NY2d 1008, 1011 [1981], amended 55 NY2d 802 [1981], appeal dismissed and cert denied 456 US 967 [1982]; Schwartz v Heyden Newport Chem. Corp., 12 NY2d 212 [1963], amended 12 NY2d 1073 [1963], cert denied 374 US 808 [1963])."(1)

Thus, claimant's cause of action for property damage accrued on the unknown date that the NYSP allegedly performed a search of the minivan.

The Court cannot determine the accrual date of the claim as claimant does not provide any information from which the Court can determine when the claim for property damages arose. As the claim fails to state the date that the claim for property damage arose, the claim fails to comply with Court of Claims Act 11 (b), the requirements of which are jurisdictional in nature (Kolnacki v State of New York, 8 NY3d 277, 281 [2007]).(2)

Court of Claims Act 11 (b) "places five specific substantive conditions upon the State's waiver of sovereign immunity by requiring the claim [or notice of intention to file a claim] to specify (1) the nature of [the claim]; (2) the time when it arose; (3) the place where it arose; (4) the items of damage or injuries claimed to have been sustained; and (5) the total sum claimed" (Lepkowski v State of New York, 1 NY3d at 206 [internal quotation marks omitted]). "Absolute exactness is not required, but the claim must enable prompt investigation and be sufficiently specific to enable [a] defendant to reasonably infer the basis for its alleged liability" (Davila v State of New York, 140 AD3d 1415, 1416 [3d Dept 2016] [internal quotation marks and citations omitted]; see Morra v State of New York, 107 AD3d 1115, 1115 [3d Dept 2013]; Deep v State of New York, 56 AD3d 1260, 1261 [4th Dept 2008]).With respect to identifying when the claim arose, "the State is not required to ferret out or assemble information that section 11(b) obligates the claimant to allege" (Matter of Geneva Foundry Litig., 173 AD3d 1812, 1813 [4th Dept 2019], quoting Lepkowski, 1 NY3d at 208 [internal quotation marks omitted]).

Here, the claim is jurisdictionally defective as claimant failed to state when the claim arose. The only date stated in the claim is January 11, 2019--a date that claimant insists is not the date that claimant sustained damages (Aff. in Opp., 5). The Court agrees inasmuch as the property damage to the minivan occurred on the date that the NYSP performed an extensive search of the vehicle, which the claim alleges occurred sometime after January 11, 2019. In an affirmation submitted in response to defendant's motion, counsel for claimant avers that the minivan was returned on August 8, 2020 and that claimant was denied information and access to the vehicle prior to that time (Aff. in Opp., 4). The allegation that claimant was denied information regarding the vehicle is belied by the claim itself, which references a phone call with the NCDA's office wherein claimant was informed that a search would be performed on the vehicle; a meeting with an assistant district attorney where claimant was shown pictures of the damaged vehicle after the search; and communication with the NCDA's office where claimant was told that the vehicle could be retrieved from the NYSP lot. However, the claim fails to state the date, or dates, on which any of these events occurred. Based on the allegations in the claim, the search that caused the damage to the minivan could have taken place at any unspecified date occurring after January 11, 2019. This range of dates is insufficient to comply with Court of Claims Act 11 (b) (Matter of Geneva Foundry Litig., 172 AD3d at 1813 [holding that a claim is jurisdictionally defective where "claimant fails to specify the dates relevant to the elements of the claim"]; see also C.B. and R.B. v State of New York, UID No. 2020-040-019 [Ct Cl, McCarthy, J., Apr. 29, 2020]; Oakland v State of New York, UID No. 2017-045-050 [Ct Cl, Lopez-Summa, J., Dec. 20, 2017]). Accordingly, the Court must dismiss the claim as jurisdictionally defective.

The Court has considered the parties' remaining contentions and finds them either without merit or unnecessary to this determination.

Based upon the foregoing, defendant's motion to dismiss the claim (M-96740) is granted. Claim number 134982 is dismissed.

September 10, 2021

Hauppauge, New York


Judge of the Court of Claims

1. Unpublished decisions and selected orders of the Court of Claims are available at

2. Defendant raises the issue of claimant's failure to comply with Court of Claims Act 11 (b) for the first time in its reply papers. The Court notes that challenges to subject matter jurisdiction may be raised at any time, even by the Court sua sponte (Wilson v State of New York, 35 Misc 3d 227, 233 [Ct Cl 2011]).