Summary
addressing the jurisdictional nature of the service provisions of section 11
Summary of this case from Kolnacki v. StateOpinion
Argued October 11, 1989
Decided November 30, 1989
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, Jerome F. Hanifin, J.
David M. Hehr for appellant.
Robert Abrams, Attorney-General (Kathleen Liston Morrison, O. Peter Sherwood and Peter H. Schiff of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs.
Claimant obtained an order from the Court of Claims granting permission to file a late claim against the Thruway Authority for personal injuries sustained on January 19, 1983 in an automobile accident. Claimant served defendant Thruway Authority personally on July 5, 1984 and on July 16, 1984 he filed a copy of the order and the claim with the Clerk of the Court of Claims. The Attorney-General was not served with either the claim or the order although the order specified that the claim be filed "in compliance with applicable statutes and court rules (see, e.g., Court of Claims Act [§] 11; CPLR 307; 22 N.Y.CRR 1200.4, 1200.5) within thirty (30) days after notice of entry hereof." Claimant took no action in the matter for approximately 32 months when he served a notice of discovery and inspection on the Attorney-General. The State then moved to dismiss for failure to make service upon the Attorney-General as required by Court of Claims Act § 11 CTC.
The Court of Claims denied the State's dismissal motion, holding that service upon the Attorney-General was not required to commence an action against the Thruway Authority. The Appellate Division rejected this position and held that the claim should be dismissed for failure to serve the Attorney-General, stating that "service on the Attorney-General is a predicate to obtaining personal jurisdiction over any defendant in the Court of Claims" ( 140 A.D.2d 941, 942).
Preliminarily, we note that the Appellate Division properly held that service on the Attorney-General is required for the commencement of an action against the Thruway Authority in the Court of Claims. Under Public Authorities Law § 361-b, compliance with Court of Claims Act § 11 CTC is necessary in order to sue the Thruway Authority (see, Brinkley v City Univ., 92 A.D.2d 805, 806). We turn to the question of whether, as claimant contends, the requirements of section 11 affect personal jurisdiction and, thus, may be waived.
It is established law that the "requirements of * * * section 11 of the Court of Claims Act are jurisdictional in nature and, therefore, must be strictly construed (Buckles v State of New York, 221 N.Y. 418, 423-424; De Marco v State of New York, 43 A.D.2d 786, affd 37 N.Y.2d 735)." (Lurie v State of New York, 73 A.D.2d 1006, 1007, affd for reasons stated at App. Div. 52 N.Y.2d 849. ) Court of Claims Act § 11 CTC, as it was when claimant purported to commence the action here, provided that the claim "shall be filed with the clerk of the court and a copy shall be served upon the attorney general within the times herein before provided for filing with the clerk of the court" (emphasis added). It is settled that the State as sovereign may not be sued except with its consent, that it may attach such terms and conditions to its consent as the Legislature deems proper, and that such terms and conditions are jurisdictional requirements (see, Buckles v State of New York, 221 N.Y. 418, 423-424, supra; see generally, Siegel, N Y Prac § 32, 1987 Pocket Part, at 10). Here, the requirement in section 11 that the Attorney-General be served with a copy of the claim was not satisfied, resulting not in a failure of personal jurisdiction, as the Appellate Division writing suggests, but in a failure of subject matter jurisdiction which may not be waived.
Court of Claims Act § 11 CTC was subsequently amended to specify the manner of service on the Attorney-General — service personally or by certified mail return receipt (L 1984, ch 427). Here, there is no issue concerning the manner of service (cf., Baggett v State of New York, 124 A.D.2d 969). The Attorney-General was never served.
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur.
Order affirmed, with costs, in a memorandum.