Opinion
# 2018-054-118 Claim No. 132132 Motion No. M-93145
01-04-2019
H.E.H., LLC v. THE STATE OF NEW YORK
PHELAN, PHELAN & DANEK, LLP HON. LETITIA JAMES Attorney General for the State of New York By: Jeane Strickland Smith, Assistant Attorney General
Synopsis
State's motion to dismiss granted, claim served by regular mail and not certified mail, return receipt requested.
Case information
| UID: | 2018-054-118 |
| Claimant(s): | H.E.H., LLC |
| Claimant short name: | HEH |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 132132 |
| Motion number(s): | M-93145 |
| Cross-motion number(s): | |
| Judge: | WALTER RIVERA |
| Claimant's attorney: | PHELAN, PHELAN & DANEK, LLP |
| Defendant's attorney: | HON. LETITIA JAMES Attorney General for the State of New York By: Jeane Strickland Smith, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 4, 2019 |
| City: | White Plains |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers numbered 1-2 were read and considered by the Court on the State's motion to dismiss:
Notice of Motion, Attorney's Supporting Affirmation and Exhibits........................1
Affirmation in Opposition and Exhibits....................................................................2
The State moves to dismiss the claim on the ground that the claim was not properly served.
On January 14, 2015, a slip and fall occurred on property leased by claimant to the State of New York and a lawsuit was commenced in New York State Supreme Court, Dutchess County, against claimant (Patterson v H.E.H., LLC, Sup Ct, Dutchess County, 2018, Brands, J., Index No. 52620/2017). The Supreme Court action is pending and no judgment has been entered. On July 13, 2018, claimant served the State with a Notice of Intention to File a Claim seeking contribution and indemnification based on a judgment that the underlying plaintiff may obtain against claimant in the New York State Supreme Court action (Defendant's Ex. A). On October 15, 2018, claimant filed a claim with the Court and served the Attorney General's office with a copy of the claim by regular mail (Defendant's Ex. B).
Defendant moved to dismiss the claim on the ground that service by regular mail is not an authorized manner of service under Court of Claims Act § 11 (a) (see Brown v State of New York, 114 AD3d 632 [2d Dept 2014]). Claimant thereafter effectuated service of another copy of the claim upon the Attorney General's office by an authorized manner of service under the Court of Claims Act. Specifically, a copy of the claim was served by certified mail, return receipt requested (Exhibits B, C). The copy of the claim was received by the Attorney General's office on December 4, 2018. However, as noted by claimant's attorney in opposition to the motion to dismiss, the Supreme Court action is still pending, no judgment has been entered, and claimant has not made any payment in that regard (Attorney's Affirmation, ¶ 9). Accordingly, the claim at bar has not yet accrued and therefore is not ripe for adjudication and is premature (see Bay Ridge Air Rights, Inc. v State of New York, 44 NY2d 49, 56 [1978] [where judgment in the underlying action had not been entered, let alone paid, the claim for indemnity and contribution had not yet accrued]; Quinn v Spitale, 203 AD2d 674 [3d Dept 1994] [contribution does not accrue until payment is made on the underlying claim]).
Thus, the Court finds that the claim warrants dismissal as it is not properly before the Court at this time. Upon accrual, claimant may commence an action in this Court by service and filing of a new claim in accordance with the mandates of the Court of Claims Act regarding service and filing.
The State's motion to dismiss Claim No. 132132 is hereby GRANTED.
January 4, 2019
White Plains, New York
WALTER RIVERA
Judge of the Court of Claims