Opinion
# 2015-040-038 Claim No. 125935 Motion No. M-86786
08-31-2015
KAYLA M. DICKERSHAID v. THE STATE OF NEW YORK
Christian deFrancqueville, Esq. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Glenn C. King, Esq., AAG
Synopsis
Motion to dismiss Claim granted as Claim not timely served upon Defendant.
Case information
| UID: | 2015-040-038 |
| Claimant(s): | KAYLA M. DICKERSHAID |
| Claimant short name: | DICKERSHAID |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | Caption amended to reflect the State of New York as the proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 125935 |
| Motion number(s): | M-86786 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Christian deFrancqueville, Esq. |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Glenn C. King, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | August 31, 2015 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, Defendant's motion to dismiss the Claim pursuant to CPLR 3211(a)(2) and (8), on the basis that the Court lacks both subject matter jurisdiction over the Claim and personal jurisdiction over the Defendant as a result of Claimant's failure to timely serve the Claim as required by Court of Claims Act §§ 10 and 11(a)(i), is granted.
The Claim, which was filed with the Clerk of the Court on April 9, 2015, asserts that, on January 9, 2015 at 5:47 am at the intersection of Lake Shore Drive and Hill Drive in Lake George, New York, Claimant was struck by a New York State snowplow operated by James R. Winchell. It is asserted that the snowplow blade was deployed and was far over the line into the oncoming lane of traffic. It is alleged that Defendant operated the snowplow in a negligent and unreasonable manner (Claim, ¶¶ 2 & 3). Defendant states that the Claim was served upon Defendant on April 13, 2015 (see Affirmation of Glenn C. King, Esq., ¶ 3).
Pursuant to the Court of Claims Act provisions applicable to personal injury actions, Claimant was required to file and serve her Claim within 90 days from the date of accrual unless a written Notice of Intention to File a Claim was served upon the Attorney General within such time period. In that case, the Claim itself was required to be filed and served upon the Attorney General within two years after the accrual of the Claim (as Claimant asserts injuries caused by negligence or unintentional torts) (Court of Claims Act § 10[3]). In either case, Claimant was required to initiate action within 90 days of the Claim's accrual.
Court of Claims Act § 11(a)(i) provides that the Claim shall be filed with the Clerk of the Court and that a copy shall be served upon the Attorney General within the time period provided in Section 10 of the Court of Claims Act, either personally or by certified mail, return receipt requested. The statute further provides that service by certified mail, return receipt requested, is not complete until the Claim or Notice of Intention to File a Claim is received by the Attorney General. It is well established that failure to timely serve the Attorney General in strict compliance with Court of Claims Act § 11 gives rise to a jurisdictional defect (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 723 [1989]; Matter of Dreger v New York State Thruway Auth., 177 AD2d 762, 763 [3d Dept 1991], affd 81 NY2d 721 [1992]; Suarez v State of New York, 193 AD2d 1037, 1038 [3d Dept 1993]).
Pursuant to Court of Claims Act § 11(c), however, any such defect is waived unless it is raised with particularity as an affirmative defense either by motion to dismiss prior to service of the responsive pleading, or in the responsive pleading itself (see Knight v State of New York, 177 Misc 2d 181, 183 [Ct Cl 1998]).
In his affirmation submitted in support of the State's motion, Defense counsel asserts that the instant Claim was served upon Defendant on April 13, 2015 (see Exhibit A attached to State's Motion). This was 94 days after the Claim allegedly accrued. Exhibit A attached to the State's motion includes a copy of the envelope in which the Claim was served. It contains a postmark indicating it was mailed in Ballston Spa, New York on April 9, 2015 by certified mail. The envelope also notes that it was received by the Attorney General on April 13, 2015.
In opposition to the motion, Claimant's counsel asserts:
5. That I, as the Attorney for the Claimant, was informed by the clerk at the post office in Ballston Spa, New York, that the Notice would be delivered in the afternoon of the 9th day of April, 2015.
6. That service was complete on April 9th, 2015, within the 90 day requirement per the Court of Claims Act.
7. That there is no rational explanation for the Attorney General's Office failure to receive the Notice other than a failure of diligence on the part of the US Postal Service, or the failure of the Attorney General's Office to sign for Certified Mail in a timely fashion.
(Affidavit of Christian de Francqueville, Esq.)
As stated above, Court of Claims Act § 11(a)(i) provides that service by certified mail, return receipt requested, is not complete until the Claim or Notice of Intention to File a Claim is received by the Attorney General. Claimant has offered no proof that the Attorney General failed to collect its certified mail in a timely fashion or that there was failure of diligence on the part of the U.S. Postal Service in delivering the mail. If Claimant believes the postal service is negligent, her remedy lies in a forum other than this Court.
Court of Claims Act § 10 is more than a statute of limitations; it is a jurisdictional prerequisite to bringing and maintaining an action in this Court (Mallory v State of New York, 196 AD2d 925, 926 [3d Dept 1993]; DeMarco v State of New York, 43 AD2d 786 [4th Dept 1973], affd 37 NY2d 735 [1975]; Antoine v State of New York, 103 Misc 2d 664 [Ct Cl 1980]). Failure to timely comply with the statutory service and filing requirements of the Court of Claims Act constitutes a fatal jurisdictional defect requiring dismissal (Lyles v State of New York, 3 NY3d 396, 400-401 [2004]; Buckles v State of New York, 221 NY 418 [1917]; Langner v State of New York, 65 AD3d 780, 781 [3d Dept 2009]; Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]). The Court cannot waive a defect in jurisdiction that has been timely raised (see Thomas v State of New York, 144 AD2d 882 [3d Dept 1988]). The defect asserted was timely and properly raised with particularity in the State's pre-Answer motion, as set forth above, in accordance with Court of Claims Act § 11(c) (Czynski v State of New York, 53 AD3d 881, 882 [3d Dept 2008], lv denied 11 NY3d 715 [2009]; Villa v State of New York, 228 AD2d 930, 931 [3d Dept 1996], lv denied 88 NY2d 815 [1996]).
Based upon the foregoing, Defendant's motion is granted and the Claim is dismissed for failure to timely serve and file it in accordance with Court of Claims Act § 10 (3). As the underlying statute of limitations has not yet expired, Claimant may wish to make a motion pursuant to Court of Claims Act § 10(6) seeking leave for permission to file a claim late.
August 31, 2015
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims The following papers were read and considered by the Court on Defendant's motion to dismiss: Papers Numbered Notice of Motion, Affirmation, and Exhibit Attached 1 Affirmation in Opposition 2 Filed Papers: Claim