Opinion
No. 122153.
03-22-2016
Daniel CHON, Claimant, v. BARUCH COLLEGE and City University of New York, Defendants.
Law Offices of Derell D. Wilson, by Derell D. Wilson, Esq., for Claimant. Eric T. Schneiderman, Attorney General, by Nicole M. Procida, AAG, for Defendants.
Law Offices of Derell D. Wilson, by Derell D. Wilson, Esq., for Claimant.
Eric T. Schneiderman, Attorney General, by Nicole M. Procida, AAG, for Defendants.
ALAN C. MARIN, J.
The defendant City University moves here to dismiss, for lack of subject matter jurisdiction, the claim of Daniel Chon, which arose from his slip and fall on the steel grate and marble floor while walking into the library at Baruch College in Manhattan. The accident occurred on August 15, 2011. For his part, claimant cross-moves for permission to file a late claim under section 10(6) of the Court of Claims Act (the “Act”).
The claimant has named Baruch College and the City University of New York in the caption to his claim. Baruch is a senior college of the City University and suits against such senior colleges should be brought solely against the City University of New York. For ease of reference, this Decision and Order will refer to defendant in the singular or to the City University of New York. In discussing the facts however, it will be appropriate to refer to Baruch College.
Sections 10(3) and 11(a)(ii) of the Act require that in an action brought against the City University, the claim (or notice of intention to file a claim) be served upon the City University and the Attorney General. Claimant concedes in his papers that the Attorney General was not served (paragraph 14 of claimant's Affirmation in Support). It asserts that such was the fault of the company that was hired to effectuate service, but claimant offers no precedent that the acts or omissions of a third party would excuse service in this forum.
The Court of Appeals has stated that “Because 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 ...” (Dreger v. New York State Thruway Auth., 81 N.Y.2d 721, 724 [1992] ). Failure to serve the Attorney General constitutes a failure of subject matter jurisdiction which requires dismissal of the claim (Finnerty v. State of New York, 75 NY2D 721 [1989] ).
In addition, Mr. Chon moves “for an Order ... Pursuant to Court of Claims Rules 206.1 granting claimant a waiver from the requirement to serve the Attorney General for good cause shown and in the interest of justice ...” (claimant's Notice of Cross Motion). The Rules of the Court do not allow a waiver in such a circumstance; nor could they because, as noted, proper service is a condition of the waiver of sovereign immunity contained in the legislative enactment. On that note, subdivision (b) of section 206 .1 of the Uniform Rules for the Court of Claims provides that compliance with the Rules may be waived “unless prohibited from doing so by statute.”
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Section 10 (6) of the Act was enacted to establish “a uniform procedure under which claims which have not been timely filed may nevertheless be heard and determined by the Court of Claims” (Memorandum of the Executive Department, 1976 McKinney's Session Laws of New York 2311. Section 10(6) lists six factors to be considered by the court; the presence or absence of any one of which is not controlling.
Despite the existence of section 10(6), a claim may still be too late: no claim may be presented that is beyond the corresponding statute of limitations period set forth in article 2 of the CPLR, such as three years for personal injury lawsuits under CPLR § 214. The reference to CPLR article 2 in section 10(6) is derived from, and required by, Article 3, § 19 of the State Constitution. It is now four and a half years after Mr. Chon's cause of action accrued: it is beyond the applicable limitations period of the CPLR.
In view of the foregoing, and having considered the submissions of the parties, IT IS ORDERED that motion No. M–87695 is granted, cross motion No. CM87894 is denied and claim No. 122153 is dismissed.
The following were reviewed: from defendant—a Notice of Motion, Affirmation in Support of Defendant's Motion to Dismiss (with exhibits A through D), and a Reply Affirmation; from defendant, a Notice of Cross Motion, and an Affirmation in Support of Motion to File a Late Claim and in Opposition to Defendants' Motion to Dismiss (with exhibits A through P).
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