Opinion
# 2020-028-551 Claim No. 133221 Motion No. M-95588 Cross-Motion No. CM-95709
12-18-2020
In the matter of the claim of Robert Joseph v. THE STATE OF NEW YORK
SILBERSTEIN, AWAD & MIKLOS, P.C. BY: Steven J. Labell, Esq. HON. LETITIA JAMES, ATTORNEY GENERAL BY: Felice V. Torres, Esq. Assistant Attorney General
Synopsis
Case information
| UID: | 2020-028-551 |
| Claimant(s): | In the matter of the claim of Robert Joseph |
| Claimant short name: | JOSEPH |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 133221 |
| Motion number(s): | M-95588 |
| Cross-motion number(s): | CM-95709 |
| Judge: | RICHARD E. SISE |
| Claimant's attorney: | SILBERSTEIN, AWAD & MIKLOS, P.C. BY: Steven J. Labell, Esq. |
| Defendant's attorney: | HON. LETITIA JAMES, ATTORNEY GENERAL BY: Felice V. Torres, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | December 18, 2020 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read on Claimant's motion for a default judgment pursuant to CPLR 3215 (b) and Defendant's motion to dismiss pursuant to CPLR 3211:
1. Notice of Motion filed June 29, 2020;
2. Affirmation of Steven J. Labell filed June 29, 2020 with Exhibits A-H annexed;
3. Affidavit of Robert Joseph filed June 29, 2020;
4. Notice of Cross-Motion filed July 28, 2020;
5. Affirmation of Felice V. Torres filed July 28, 2020 with Exhibits A-B annexed;
6. Affidavit of Joseph Alexander filed July 29, 2020;
7. Affirmation of Steven J. Labell filed October 1, 2020 with Exhibits A-E annexed;
8. Affirmation of Mary Beth Harmon filed October 7, 2020 with Exhibit 1 annexed.
Filed papers: Claim
This action arises from a construction site accident that occurred at South Beach Psychiatric Center and/or South Beach Mental Health Redevelopment Projects located at 777 Seaview Avenue, Staten Island. On the day of the accident, April 30, 2019, claimant was employed by Leon D. Dematteis Construction Corp. as a construction worker. As alleged in the claim, he tripped and fell over debris on a staircase and sustained severe injuries to his right ankle and knee. The claim is based on violations of Labor Law §§ 200 and 241 (6). Claimant originally moved for a default judgment but after defendant cross-moved to dismiss the claim as untimely served, defendant brought a motion for leave to late file a claim.
The motion to dismiss may be dispositive of the claim and therefore, is addressed first. As the action was brought to recover for personal injuries caused by negligence, claimant was required to serve the claim on the Attorney General within ninety days of accrual (Court of Claims Act § 10 [3]). A failure to timely serve the claim deprives the court of jurisdiction and requires dismissal of the claim (Baysah v State of New York, 134 AD3d 1304 [3d Dept 2015]). In this instance, ninety days after April 30, 2019, the date of accrual, was July 29, 2019. Claimant does not dispute the proof submitted by defendant showing that the claim was served on July 9, 2020, well beyond the statutorily prescribed 90 days period for service. Instead, claimant argues that the motion to dismiss should be held in abeyance until the court has decided its motion for leave to late file a claim. However, even assuming that the motion to late file would be granted, the late claim would be treated as a new filing and would not obviate the need for the court to address the status of the pending claim. Consequently, as claimant does not dispute that the claim was served more than 90 days after the date of accrual, and therefore, is untimely, the court is without jurisdiction and the claim must be dismissed.
The motion for permission to late file a claim is addressed in a separate decision and order.
Accordingly, it is
ORDERED, that the motion for a default judgment is denied as moot and it is further
ORDERED, that the cross-motion is granted and the claim is dismissed.
December 18, 2020
Albany, New York
RICHARD E. SISE
Judge of the Court of Claims