|Claimant(s):||TREVAUGHN GRIFFITH and LUCIANA GRIFFITH|
|Claimant short name:||GRIFFITH|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||MAUREEN T. LICCIONE|
|Claimant's attorney:||Hach & Rose, LLP
By: Evan F. Bane, Esq.
|Defendant's attorney:||HON. LETITIA JAMES, ATTORNEY GENERAL
By: Robert E. Morelli, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 9, 2021|
|See also (multicaptioned case)|
The instant claim was filed on September 18, 2017 seeking damages for injuries sustained as the result of a motorcycle accident. On July 4, 2017, claimant Trevaughn Griffith was operating his motorcycle, heading south on the "Wantagh Highway"(1) toward Jones Beach in Nassau County. As claimant navigated a turn near Exit 27 South, he encountered a drawbridge that was going up. The claim for negligence alleges that there was insufficient notice that the drawbridge was going up, allowing claimant insufficient time to stop and causing him to be thrown off his motorcycle, sustaining injuries. Defendant now moves for summary judgment on the ground that the claim was not timely served upon the Office of the Attorney General (OAG). Claimants cross-move for permission to file a late claim.
Motion for Summary Judgment
Court of Claims Act § 10 (3) provides that a claim to recover damages for personal injuries caused by the negligence of a state employee must be filed within 90 days after the accrual of such claim, unless the claimant within such time serves a written notice of intention to file a claim, in which event the claim must be filed within two years after the accrual of the claim (Kiesow v State of New York, 161 AD3d 1060, [2d Dept 2018] [citation omitted]).
Court of Claims Act § 11 (a) (i) provides that a "claim shall be filed with the clerk of the court; and . . . a copy shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for filing with the clerk of the court." "[A]s suits against defendant are permitted only by virtue of its waiver of sovereign immunity and are in derogation of the common law, the failure to strictly comply with the filing or service provisions of the Court of Claims Act divests the court of subject matter jurisdiction and compels dismissal of the claim" (Caci v State of New York, 107 AD3d 1121, 1122 [3d Dept 2013] [internal quotation marks and citations omitted]; see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 ; Rodriguez v State of New York, 307 AD2d 657, 657 [3d Dept 2003]).
The instant claim for negligence accrued on July 4, 2017. Thus, Court of Claims Act § 10 (3) required that a claim be filed and served or a notice of intention to file a claim be served upon the Attorney General within 90 days after July 4, 2017. Claimants were therefore required to file and serve a claim or serve a notice of intention to file a claim no later than October 2, 2017. Claimants timely filed a claim on September 18, 2017. However, the claim was not served upon the OAG until January 5, 2018 (Affirmation in Support of Motion for Summary Judgment, Exhibit B), 185 days past the accrual date of July 4, 2017. Both filing and service of the claim must occur within the statutory period proscribed by Court of Claims Act § 10 (3) (see Dreger v New York State Thruway Auth., 81 NY2d 721, 724 ). Because the claim was not timely served upon the OAG, the claim is untimely and must be dismissed.
Motion for Permission to File a Late Claim
The Court of Claims is vested with broad discretion to grant or deny an application for permission to file a late claim (Matter of Gonzalez v State of New York, 299 AD2d 675 [3d Dept 2002]). In making a determination to grant or deny such an application, the Court must determine whether the claim would be timely under Article 2 of the CPLR and then consider certain statutory factors (Court of Claims Act § 10 ). These factors are: (1) whether the delay in filing the claim was excusable; (2) whether the state had notice of the essential facts constituting the claim; (3) whether the state had an opportunity to investigate the circumstances underlying the claim; (4) whether the state was substantially prejudiced; (5) whether the claimants have any other available remedy; and (6) whether the claim appears to be meritorious (Court of Claims Act § 10 ). The presence or absence of any one of said factors is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979 ). However, the last factor is the most decisive inasmuch as it is futile to proceed with a meritless claim even if the other factors support the granting of the claimants' application (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]; Prusack v State of New York, 117 AD2d 729 [2d Dept 1986]).
Before addressing the six statutory factors, the Court must determine whether claimants' alleged causes of action are timely under CPLR Article 2 (Court of Claims Act § 10 ).
The claim accrued on July 4, 2017 and is subject to the three year statute of limitations set forth in CPLR 214. On March 20, 2020, in response to the coronavirus public health emergency, then Governor Andrew M. Cuomo issued Executive Order No. 202.8, which, among other things, directed that "any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to [certain state laws], any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020" (Executive Order No. 202.8, dated Mar. 20, 2020 [9 NYCRR 8.202.8] [emphasis added]). That directive was extended through successive Executive Orders, with the final extension through and including "November 3, 2020, and after such date any such time limit will no longer be tolled" (Executive Order No. 202.67, dated Oct. 4, 2020 [9 NYCRR 8.202.67]). Accordingly, claimants' time to file a late claim application was tolled on March 20, 2020, at which time claimants had 106 days remaining to commence an action pursuant to the statute of limitations set forth in CPLR 214. The statute of limitations began running again on November 4, 2020, and claimants' time to file and serve the instant motion expired on February 18, 2021. Because claimants' cross motion for permission to file a late claim was not filed until August 19, 2021, it is untimely. The Court must therefore deny the late claim application and need not consider the six statutory factors set forth in Court of Claims Act § 10 (6).
Based upon the foregoing, defendant's motion for summary judgment (M-96492) is GRANTED. Claim number 130275 is DISMISSED. Claimants' cross motion for permission to file a late claim (CM-97156) is DENIED.
December 9, 2021
Hauppauge, New York
MAUREEN T. LICCIONE
Judge of the Court of Claims
1. The claim likely intends to refer to the Wantagh State Parkway.