Opinion
# 2018-045-036 Claim No. 131211 Motion No. M-92169 Cross-Motion No. CM-92418
10-11-2018
STEVEN BENFANTE and PAULA DeLUCA as Administrators of the Estate of PAUL BENFANTE v. THE STATE OF NEW YORK
Parker Waichman LLP By: Denny Tang, Esq. Hon. Barbara D. Underwood, Attorney General By: Robert E. Morelli, Assistant Attorney General
Synopsis
Defendant's motion to dismiss claim due to claimant's motion as untimely since administrator was not appointed prior to filing the claim. Also CPLR 203, 205 (a) and 210 did not apply to extend time to file. Additionally, late claim request was denied since statute of limitations had run.
Case information
| UID: | 2018-045-036 |
| Claimant(s): | STEVEN BENFANTE and PAULA DeLUCA as Administrators of the Estate of PAUL BENFANTE |
| Claimant short name: | BENFANTE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption has been amended, sua sponte, to reflect the State of New York as the only properly named defendant. |
|---|---|
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 131211 |
| Motion number(s): | M-92169 |
| Cross-motion number(s): | CM-92418 |
| Judge: | GINA M. LOPEZ-SUMMA |
| Claimant's attorney: | Parker Waichman LLP By: Denny Tang, Esq. |
| Defendant's attorney: | Hon. Barbara D. Underwood, Attorney General By: Robert E. Morelli, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | October 11, 2018 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read and considered by the Court on this motion: Defendant's Notice of Motion; Defendant's Affirmation in Support with annexed Exhibits A-G; Claimant's Notice of Cross-Motion; Claimant's Affirmation in Opposition and in Support of Cross-Motion with annexed Exhibits A-F; and Defendant's Affirmation in Further Support and in Opposition to Cross-Motion with annexed Exhibits 1-2.
Defendant, the State of New York, has brought this motion pursuant to Civil Practice Law and Rules (CPLR) 3211 (a) (1), (2), (3), (7) and (8) as well as Court of Claims Act §§ 10 and 11 seeking an order dismissing the claim. Claimant, Steven Benfante and Paula Deluca as Administrators of the Estate of Paul Benfante, has opposed this motion and brought a cross motion "to permit Claimants' Claim" pursuant to CPLR 203, 205, 210 and Court of Claims Act § 10 (6).
Although not included in the caption of the claim, a derivative cause of action was put forth on behalf of Connie Benfante, the spouse of Paul Benfante, decedent, in the body of the claim. Claimant concedes that the derivative cause of action was erroneously included in the claim and does not contest defendant's grounds for seeking dismissal for that portion of the claim. Accordingly, the derivative cause of action is dismissed from the claim.
The underlying claim in this matter states that on April 21, 2015 at approximately 3:30 p.m. decedent, Paul Benfante, was injured due to a defective sidewalk in front of 2 Marshmallow Drive. More specifically the accident took place approximately 15-20 feet from the northeast corner of the intersection of Marshmallow Drive and Town Line Road.
A notice of intention to file claim was served upon defendant on July 13, 2015. A second notice of intention was served only on the New York State Office of Mental Health on July 16, 2015. Decedent subsequently passed away on March 19, 2017. Thereafter, a claim was filed in this matter on April 14, 2017 and served upon defendant on April 17, 2017. The claim was assigned claim number 129577 by the Clerk of the Court of Claims. The claim was filed by Connie Benfante as Proposed Administratrix of the Estate of Paul Benfante, deceased and Connie Benfante, individually.
Claimant mistakenly refers to filing the notice of intention however pursuant to Chapter 466, Laws of 1995, effective August 2, 1995, a notice of intention is no longer filed with the Clerk of the Court of Claims.
In a Decision and Order filed November 1, 2017, this Court dismissed the claim 129577 since it was filed and served prior to Connie Benfante obtaining Letters of Administration appointing her administratrix of decedent's estate.
Thereafter, on March 28, 2018, Steven Benfante and Paula DeLuca obtained Letters Testamentary and served the instant claim upon the Office of the Attorney General. The present claim 131211 was filed with the Court on March 28, 2018.
Defendant seeks dismissal of the claim for a variety of reasons. Initially, defendant argues that the claim should be dismissed since it is untimely under Court of Claims Act § 10 (3) and CPLR 205 (a) does not apply.
Court of Claims Act § 10 (3) provides in pertinent part that a claim shall be filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after the accrual of such claim.
The Court of Appeals has long held that "[b]ecause suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed" (Lichtenstein v State of New York, 93 NY2d 911 [1999]; Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]). A notice of intention was served timely in this matter but claimant failed to file and serve the present claim within two years after the accrual of such claim As a result the claim must be dismissed (id.; Colombo v State of New York, 135 AD3d 804 [2d Dept 2016]).
Defendant argues next that claimant cannot avail himself of the ameliorative provisions of CPLR 205 (a) since the prior action was not timely commenced.
CPLR 205 (a) provides in pertinent part that:
"[i]f 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."
It is well settled that CPLR 205 (a) does not obviate the necessity for complying with the conditions precedent to suit contained within Court of Claims Act § 10 (Campbell v City of New York, 4 NY3d 200 [2005]; Yonkers Contr. Co. v Port Auth. Trans-Hudson Corp., 93 NY2d 375 [1999]; Lichtenstein v State of New York, 93 NY2d 911 [1999]). Additionally, the statutory requirements to commence a personal injury suit in the Court of Claims mandate the filing and service of a claim within the time limitations set forth in Court of Claims Act § 10 (3) (Lichtenstein v State of New York, 93 NY2d 911 [1999]). The underlying facts in Lichtenstein are analogous to the present case. The Court of Appeals in Lichtenstein found that the claimant, who started her action in the Court of Claims before receiving letters of administration, did not meet the requirements of the Court of Claims Act, and thus did not properly commence the action. Accordingly, the Court of Appeals upheld the Third Department's finding that CPLR 205 (a) was unavailable to claimant. As a result, this Court is constrained to hold that, given the facts of this case, claimant cannot avail himself of the ameliorative provisions of CPLR 205 (a).
The Court also notes that the April 17, 2017 claim was filed and served by Connie Benfante, as Proposed Administratrix of the Estate of Paul Benfante, Deceased and Connie Benfante, Individually. Ms. Benfante was never appointed administrator of decedent's estate. The March 28, 2018 claim was filed and served by Steven Benfante and Paula Deluca as Administrators of the Estate of Paul Benfante.
Defendant also argues that the claim does not adequately plead the detail required by Court of Claims Act § 11 (b).
Court of Claims Act § 11 (b) requires in pertinent part that "[t]he claim shall state the time when and place where such claim arose, the nature of same, [and] the items of damage or injuries claimed to have been sustained." These requirements are jurisdictional in nature and must be strictly complied with in order to properly initiate an action against defendant (Kolnacki v State of New York, 8 NY3d 277 [2007]). "The Court of Claims Act does not require [defendant] to ferret out or assemble information that section 11 (b) obligates the claimant to allege" (Lepkowski v State of New York, 1 NY3d 201, 208 [2003]). The Court finds that the claim adequately satisfies the requirements of Court of Claims Act § 11 (b).
Lastly, defendant argues that the claim fails to state a cause of action as the State owed decedent no duty to maintain the sidewalk. On a motion to dismiss pursuant to CPLR 3211, the court is required to "accept the facts as alleged in the [claim] as true, accord [claimant] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 [1994]). This Court, in its discretion, did not convert the motion to one seeking summary judgment (see CPLR 3211 [c]; Milhovan v Grozavu, 72 NY2d 506 [1988]; Bowes v Healy, 40 AD3d 566 [2d Dept 2007]). Accordingly, the Court determines that the claim states a cause of action against defendant. The Court also finds this portion of defendant's motion to be premature as there are questions of fact which need to be further resolved.
Claimant initially argues that the present claim filed March 28, 2018 is timely pursuant to CPLR 203 (f) since it relates back to the April 14, 2017 claim which was previously dismissed by this Court. CPLR 203 (f) provides that:
"[a] claim asserted in an amended pleading is deemed to have been interposed at the time the claims in the original pleading were interposed, unless the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading."
It is axiomatic that in order for CPLR 203 (f) to apply there must be a claim to amend. Since the April 14, 2017 claim was dismissed by this Court in a Decision and Order filed November 1, 2017 in a separate action there is no pleading to amend here. Additionally, a jurisdictional defect cannot be cured by amendment (Nasir v State of New York, 41 AD3d 677 [2d Dept 2007]).
Claimant also argues that the statute of limitations to file the claim was extended pursuant to CPLR 210 (a) and (c).
The tolls and extensions of CPLR article 2 may not be invoked to extend the statutory period required by Court of Claims Act 10 (3) for the filing of a claim against the State of New York (Pelnick v State of New York, 171 AD3d 734, 735 [2d Dept 1991]; see also Campbell v City of New York, 4 NY3d 200 [2005]; Yonkers Contr. Co. v Port Auth. Trans-Hudson Corp., 93 NY2d 375 [1999]). Thus, the provisions of CPLR 210 (a) and (c) are inapplicable.
Turning to claimant's cross motion seeking permission to file a late claim pursuant to Court of Claims Act § 10 (6 ), the Court is constrained to deny the cross motion. Court of Claims Act § 10 (6) states in relevant part that:
"[a] claimant who fails to file or serve upon the attorney general a claim or to serve upon the attorney general a notice of intention, as provided in the foregoing subdivisions, within the time limited therein for filing or serving upon the attorney general the claim or notice of intention, may, nevertheless, in the discretion of the court, be permitted to file such claim at any time 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."
Claimant's cross motion was filed on June 19, 2018, after the expiration of the applicable three-year statute of limitations period contained within CPLR § 214. Accordingly, it is well-settled that this Court is without authority to grant claimant's motion (Miles v City Univ. of N.Y., 126 AD3d 609 [1st Dept 2015]; Dolberry v State of New York, 71 AD3d 948 [2d Dept 2010]; Roberts v City Univ of N.Y., 41 AD3d 825 [2d Dept 2007]; Crum & Foster Ins. Co. v State of New York, 25 AD3d 643 [2d Dept 2006]).
Therefore, for the foregoing reasons, defendant's motion to dismiss the claim is granted and claimant's cross motion is denied.
October 11, 2018
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims