Opinion
# 2015-040-012 Claim No. 124516 Motion No. M-85836
03-09-2015
AMY BENNICE v. NEW YORK STATE OLYMPIC REGIONAL DEVELOPMENT AUTHORITY
Amy Bennice, Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Paul F. Cagino, Esq., AAG
Synopsis
Court vacates its Order to Show Cause regarding service. Directs State to serve and file Answer or make pre-Answer motion to dismiss.
Case information
UID: | 2015-040-012 |
Claimant(s): | AMY BENNICE |
Claimant short name: | BENNICE |
Footnote (claimant name) : | |
Defendant(s): | NEW YORK STATE OLYMPIC REGIONAL DEVELOPMENT AUTHORITY |
Footnote (defendant name) : | |
Third-party claimant(s): | |
Third-party defendant(s): | |
Claim number(s): | 124516 |
Motion number(s): | M-85836 |
Cross-motion number(s): | |
Judge: | CHRISTOPHER J. McCARTHY |
Claimant's attorney: | Amy Bennice, Pro Se |
---|---|
Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Paul F. Cagino, Esq., AAG |
Third-party defendant's attorney: | |
Signature date: | March 9, 2015 |
City: | Albany |
Comments: | |
Official citation: | |
Appellate results: | |
See also (multicaptioned case) |
Decision
By Order to Show Cause returnable January 14, 2015, the Court noted that Claimant may have failed to comply with the service requirements of § 11 of the Court of Claims Act. The parties were ordered to submit a written statement evidencing service of the Claim. The Order to Show Cause also stated that, if the State "wishes to assert that the Claim was not served on the Attorney General, that statement should come from someone with personal knowledge of the contents of files and records of the Department of Law." Claimant has failed to respond to the Order to Show Cause.
The instant Claim was filed with the Clerk of the Court on June 13, 2014. The State did not file a verified answer to the Claim. In response to the Order to Show Cause, Defendant submitted an affirmation from Assistant Attorney General Paul F. Cagino, Esq., and an affidavit of Janet Barringer, a Senior Clerk in the Albany Office of the Attorney General (Ex. C attached to Cagino Affirmation).
Mr. Cagino states that, on June 13, 2014, the State received a Notice of Intention to File a Claim, as well as a Notice of Claim pursuant to General Municipal Law § 50-e from Claimant, Ms. Bennice (Cagino affirmation, ¶¶ 4 & 5). Mr. Cagino asserts that the Notice of Claim is required as a condition precedent to bringing an action pursuant to Public Authorities Law § 2622 (id., ¶ 5). Ms. Barringer states in her affidavit that, upon her thorough search of the records of the New York State Attorney General's office, she found no record that a claim in this matter has been served on the Attorney General. She further states that she "ran" a report detailing "each and every pleading and court letter that has been received by or served upon the defendant in reference to this claimant" and determined that a Notice of Intention to File a Claim and a Notice of Claim pursuant to General Municipal Law § 50-e were served upon the Attorney General on June 13, 2014. Those same documents were both personally served upon the Attorney General's office at 9:40 a.m. and signed for by Cristal Gazelone, Office of Legal Records (Exs. A & B attached to Cagino affirmation).
The Court of Claims has held on several occasions that the legislature did not intend to, nor did it, create a hybrid procedure for commencing a claim against the Olympic Regional Development Authority (hereinafter "ORDA") and a claimant is not required to comply with the General Municipal Law provisions referenced in Public Authorities Law § 2622 in order to commence an action in the Court of Claims against ORDA (Traina v New York State Olympic Regional Dev. Auth., 165 Misc 2d 870, 873-874 [Ct Cl 1995]; Vespa Roach v New York State Regional Development Authority, UID No. 2009-015-138 [Ct Cl, Collins, J., Feb. 13, 2009]; Davey v New York State Olympic Regional Development Authority, UID No. 2006-015-076 [Ct Cl, Collins, J., Mar. 9, 2006]; Rosen v State of New York, UID No. 2003-028-570 [Ct Cl, Sise, J., Oct. 2, 2003]). This Court sees no reason to depart from these prior determinations. Thus, the Court rejects the Defendant's argument that the Notice of Claim is required as a condition precedent to bringing an action pursuant to Public Authorities Law § 2622.
On June 13, 2014, Claimant served upon the Attorney General a Notice of Intention to File a Claim and a Notice of Claim. The Notice of Claim was then filed with the Clerk of the Court on the same date. In Court of Claims practice, there is no "Notice of Claim." There is a Notice of Intention to File a Claim and a Claim. However, the Clerk of the Court accepted the document as a Claim and assigned it Claim No. 124516. Both Claimant and Defense counsel were notified, by letter dated July 2, 2014, that Claimant's Claim was filed with the Clerk on June 13, 2014. Therefore, Defendant was on notice that a document that the Clerk considered met the requirements of a claim had been filed with the Court.
Which is served upon the Defendant and, if timely and properly served, extends one's time to serve and file a Claim.
As Claimant has provided an affidavit of service asserting that the Claim was delivered personally, and the exhibits attached to Defendant's affirmation evidence that it received a Notice of Claim, also by personal service, the Order to Show Cause is vacated. As there seems to have been some confusion surrounding this matter, the Court directs that Defendant serve and file a Verified Answer to this Claim or, in the alternative, a pre-Answer motion to dismiss, in either case within forty (40) days from the date of filing of this Decision and Order.
March 9, 2015
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court:
Papers Numbered
Order to Show Cause 1
Defendant's Response to Order to Show Cause
and Exhibits attached 2
Filed Papers: Claim