Opinion
# 2017-032-013 Claim No. 128545 Motion No. M-89510
03-20-2017
397 REALTY LLC v. THE STATE OF NEW YORK
David H. Singer & Associates, LLP By: Christopher S. McCann, Esq. Hon. Eric T. Schneiderman, NYS Attorney General By: Lawrence E. Kozar, Assistant Attorney General, Of Counsel
Synopsis
Defendant's motion to dismiss is granted, as claimant did not serve a notice of intention to file a claim within 90 days of accrual.
Case information
| UID: | 2017-032-013 |
| Claimant(s): | 397 REALTY LLC |
| Claimant short name: | 397 REALTY |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption has been amended to reflect the only properly named defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128545 |
| Motion number(s): | M-89510 |
| Cross-motion number(s): | |
| Judge: | JUDITH A. HARD |
| Claimant's attorney: | David H. Singer & Associates, LLP By: Christopher S. McCann, Esq. |
| Defendant's attorney: | Hon. Eric T. Schneiderman, NYS Attorney General By: Lawrence E. Kozar, Assistant Attorney General, Of Counsel |
| Third-party defendant's attorney: | |
| Signature date: | March 20, 2017 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant seeks monetary damages arising from the failure of the Kings County Clerk to properly record an order extending claimant's judgment lien against certain real property in Brooklyn, New York. In lieu of an answer, defendant moves for dismissal of the claim for lack of subject matter jurisdiction on the ground that it is untimely. For the reasons that follow, the Court grants the motion and dismisses the claim.
The Court notes that defendant's Notice of Motion denotes the motion as one seeking summary judgment pursuant to CPLR 3212. Although, "[a]s a general rule, summary judgment pursuant to CPLR 3212 is premature prior to issue having been joined by service of an answer" (Yule v New York Chiropractic Coll., 43 AD3d 540, 541 [3d Dept 2007]), "a court's lack of subject matter jurisdiction may not be waived and may, in fact, be raised at any time" (Djoganopoulos v Polkes, 95 AD3d 933, 934 [2d Dept 2012]; see Matter of Fry v Village of Tarrytown, 89 NY2d 714, 718 [1997]). Accordingly, the Court will proceed to determine the motion "in accordance with the requirements of CPLR 3211, and, in so doing, [will] afford the pleadings a liberal construction, take the allegations of the complaint as true and provide [claimant] the benefit of every possible inference" (Maki v Bassett Healthcare, 141 AD3d 979, 980 [3d Dept 2016] [internal quotation marks and citations omitted]).
The facts underlying the instant matter are largely undisputed. Claimant alleges that, on March 6, 2014, it obtained an order from Supreme Court, New York County, extending the lien of a money judgment held by claimant upon real property located in Brooklyn, New York. Claimant further states that, on March 26, 2014, it filed a certified transcript of said order with the Kings County Clerk and paid the requisite filing fee, but the Clerk failed to immediately docket the transcript. Following claimant's discovery of the error on June 22, 2015, it served a notice of intention to file a claim upon the Attorney General on July 23, 2015. Claimant further alleges that, although the Clerk docketed the transcript shortly after the error was discovered, claimant lost its secured-creditor status and its legal right to equity in the property when one of the judgment debtors was granted Chapter 7 bankruptcy on March 31, 2016.
In support of its motion seeking dismissal of the claim, defendant argues that claimant was untimely in filing its notice of intention on July 23, 2015 because the claim accrued on the date of the Clerk's recording error, over one year prior. Claimant counters that the claim accrued on June 22, 2015, when the underlying error was discovered, and that its notice of intention to file a claim was therefore timely.
As relevant here, "[a] claimant seeking to recover damages for personal injuries caused by the negligence . . . 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 New York State Off. of Children & Family Servs., 82 AD3d 1468, 1469 [3d Dept 2011]; see Court of Claims Act § 10 [3]). "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], lv denied 86 NY2d 706 [1995] see Bullard v State of New York, 307 AD2d 676, 677-678 [3d Dept 2003]). Stated differently, 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, 232 AD2d 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]).
Inasmuch as the instant claim does not constitute an exception to the general rule for accrual of an action, the Court finds that it accrued no later than the time of the recording error on March 26, 2014 (see Flushing Natl. Bank v State of New York, 210 AD2d at 294; see also Vigilant Ins. Co. of Am. v Housing Auth. of City of El Paso, Tex., 87 NY2d 36, 43 [1995]; Torrance Constr., Inc. v Jaques, 127 AD3d 1261, 1265-1266 [3d Dept 2015]). Because claimant did not serve his notice of intention to file a claim within 90 days of that date, the Court lacks subject matter jurisdiction over the claim, and it must therefore be dismissed (see Vargas v State of New York, 62 AD3d 1170, 1171 [3d Dept 2009]; Pizarro v State of New York, 19 AD3d 891, 892 [3d Dept 2005], lv denied 5 NY3d 717 [2005]).
Based upon the foregoing, it is hereby
ORDERED, that defendant's motion (M-89510) is granted and the claim (No. 128545) is dismissed.
March 20, 2017
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims Papers Considered: 1. Claim, filed on September 16, 2016. 2. Notice of Motion dated November 15, 2016, and Affirmation in Support of Motion, affirmed by Lawrence E. Kozar, AAG, on November 15, 2016, with exhibits. 3. Affirmation in Opposition to Motion, affirmed by David H. Singer, Esq., on January 17, 2017, with exhibits; Affidavit of Elliot Galpern, sworn to on January 17, 2017; and Memorandum of Law in Opposition to Motion, signed by Christopher S. McCann, Esq., on January 17, 2017.