Opinion
# 2017-038-536 Claim No. 126646 Motion Nos. M-89174 M-89990 Cross-Motion No. CM-89517
05-12-2017
ERIK M. BANG-BIRGE and RACHEL BANG-BIRGE v. NEW YORK STATE THRUWAY AUTHORITY
KENNETH LIEBERMAN, ESQ. ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Joan Matalavage, Assistant Attorney General
Synopsis
Defendant's motion to dismiss is granted pursuant to Court of Claims Act § 11 [a] [I], and the claim is dismissed as it is jurisdictionally defective.
Case information
| UID: | 2017-038-536 |
| Claimant(s): | ERIK M. BANG-BIRGE and RACHEL BANG-BIRGE |
| Claimant short name: | BANG-BIRGE |
| Footnote (claimant name) : | |
| Defendant(s): | NEW YORK STATE THRUWAY AUTHORITY |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126646 |
| Motion number(s): | M-89174, M-89990 |
| Cross-motion number(s): | CM-89517 |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | KENNETH LIEBERMAN, ESQ. |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Joan Matalavage, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 12, 2017 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimants Erik and Rachel Bang-Birge, husband and wife, filed this claim seeking compensation for personal injuries and property damage that they sustained when their vehicle was allegedly struck by a snow plow that was owned and operated by defendant New York State Thruway Authority. As demonstrated by Exhibit A to the claim that was filed with the court on August 26, 2015, claimants served notices of intention to file the claim upon both the Thruway Authority and the Office of the Attorney General. The claim itself was served upon only the Attorney General and not the Thruway Authority.
By motion number M-89174, claimants seek to amend the claim to add a derivative cause of action for claimant Erik Bang-Birge. Defendant has cross-moved for summary judgment against Erik Bang-Birge on his pleaded causes of action on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). The parties each oppose the other's motion. Motion number M-89990, filed by defendant, seeks dismissal of the claim in its entirety on the ground that claimants did not serve the claim upon defendant Thruway Authority, which claimants oppose.
Claimants' arguments are set forth in counsel's affidavit in opposition to the motion and were restated and elaborated upon during oral argument on the motion on April 6, 2017.
A claim asserted against the State of New York must be served upon the Attorney General (see Court of Claims Act § 11 [a] [I]). A claim against the Thruway Authority must be served upon the Thruway Authority as well as upon the Attorney General (see Court of Claims Act § 11 [a] [ii]). It is undisputed that claimants did not serve this claim upon the Thruway Authority. The failure to do so is a jurisdictional defect that requires dismissal of the claim (see Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]; Finnerty v New York State Thruway Auth., 75 NY2d 721, 723 [1989]; Wolfe v New York State Thruway Auth., UID No. 2015-009-036 [Midey, Jr., J., Dec. 21, 2015]). Thus, this claim is subject to dismissal for lack of jurisdiction.
Claimants oppose the motion to dismiss on the ground that defendant should be equitably estopped from asserting the lack of service on the Thruway Authority as a defense because claimants relied to their detriment upon defendant's response to their amended demand for a bill of particulars for affirmative defenses. The fourth affirmative defense in defendant's verified answer states that "[t]his Court lacks personal jurisdiction over the defendant, New York State Thruway Authority, and subject matter jurisdiction over the claim, as the claim was not served on the New York State Thruway Authority as required by Court of Claims Act Section 11" (Answer, ¶ Seventh). In an amended demand for a bill of particulars for affirmative defenses, claimants requested that defendant "[s]tate with particularity the facts why the Court lacks personal and subject matter jurisdiction over the defendant, the New York State Thruway Authority pursuant to Section 11 of the Court of Claims Act, as stated in your fourth affirmative defense" (Lieberman Affidavit in Opposition, Exhibit 1, ¶ 7). Defendant replied that "[t]he improper purported Notices of Intention fail to give this Court personal or subject matter jurisdiction over the New York State Thruway Authority. Since no proper Notice of Intention was served within ninety days of the accident, this Court is without jurisdiction" (id., Exhibit 2, ¶ 7). This response may have been relevant to other affirmative defenses, but it was impertinent to the defense of having failed to serve the Thruway Authority. Claimants' counsel asserts that he confirmed that the notices of intention had been timely served and that the claim was timely filed, and that if defendant's bill of particulars had clearly cited the appropriate language of Court of Claims Act § 11 (a) (ii), service of the claim upon the Thruway Authority would have been made prior to the expiration of time limitations. Counsel argues that he relied upon defendant's bill of particulars, and that defendant should therefore be estopped from asserting its fourth affirmative defense.
The sixth affirmative defense asserts that the Court lacks subject matter jurisdiction over the claim because the notice of Intention was not served within ninety days of the accrual of the claim (see Answer, ¶ Ninth). --------
Counsel for defendant acknowledged in her papers and at oral argument that the response to the demand for particularity for the fourth affirmative defense was clearly an error and there was no intention to mislead claimants. Defendant further argues that the defense was clearly and unambiguously stated and required no amplification, and that there can be no estoppel due to the jurisdictional nature of the defense.
Defendant's motion is nearly indistinguishable from the facts underlying the decision of the Appellate Division, Fourth Department in Klopfe v New York State Thruway Auth., 177 AD2d 1059 [4th Dept 1991]). Here, even assuming that the affirmative defense of lack of service on the Thruway Authority was insufficiently pleaded in the answer and also that it was appropriate to request amplification of a statutory defense in a bill of particulars, the doctrine of estoppel is not available to preclude the State from asserting a jurisdictional defense in the Court of Claims ( but see Rodriguez v State of New York, 307 AD2d 657, 657 [3d Dept 2003] ["A lack of subject matter jurisdiction is a defect that cannot be overlooked or remedied by either waiver or estoppel"]; cf. Bender v New York City Health & Hosps. Corp., 38 NY2d 662, 668 [1976] [equitable estoppel may apply to notice of claim requirement, a condition precedent]). Further, estoppel is inapplicable here because claimants cannot demonstrate that there was a detrimental change in their position in reliance upon any misstatement by defendant in its bill of particulars (see Klopfe v New York State Thruway Auth., 177 AD2d at 1060; contra H. Sysol Constr. Co. v State of New York, 92 Misc 2d 238 [Ct Cl 1977] [State invited putative claimant to engage in settlement negotiations without litigation, then terminated negotiation and invited litigation in Court of Claims after time to commence a claim had expired]). Stated another way, and even if the doctrine of estoppel was applicable, the fourth affirmative defense was unambiguously clear and did not require further amplification. Even if amplification were required, the response provided by defendant was clearly inapplicable to the fourth affirmative defense such that claimant could not have reasonably or justifiably relied upon the amplification, and claimant could have sought further clarification of defendant's response. Thus, this claim must be dismissed as jurisdictionally defective. Accordingly, it is
ORDERED, that defendant's motion number M-89990 is GRANTED and claim number 126646 is DISMISSED, and it is further
ORDERED, that motion number M-89174 is DENIED as moot, and it is further
ORDERED, that cross motion CM-89517 is DENIED as moot.
May 12, 2017
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: (1) Claim No. 126646, with attachments, filed August 26, 2015; (2) Verified Answer, filed October 2, 2015; (3) Notice of Motion (M-89174), filed September 2, 2016; (4) Motion to Amend Claim, dated August 31, 2016, with Exhibit 1; (5) Notice of Cross-Motion (CM-89517), dated November 14, 2016; (6) Affidavit of Joan Matalavage, AAG, in Support of Cross-Motion and in Opposition to Motion to Amend Claim, sworn to November 14, 2016, with Exhibits A-E; (7) Affidavit of Kenneth Lieberman, Esq., in Rsponse [sic] to Cross Motion and Opposition to Motion to Amend, sworn to November 21, 2016, with Exhibits A-B; (8) Notice of Motion (M-89990), dated February 22, 2017; (9) Affidavit of Joan Matalavage, AAG, in Support of Motion to Dismiss, sworn to February 22, 2017, with Exhibits A-C; (10) Affidavit of Kenneth Lieberman, Esq., in Opposition to Motion to Dismiss, sworn to March 15, 2017, with exhibits 1-3; (11) Reply Affidavit of Joan Matalavage, AAG, sworn to March 22, 2017.