Opinion
# 2021-058-005 Claim No. 135614 Motion No. M-96360 Cross-Motion No. CM-96391
02-26-2021
CAROL D. JUBENVILLE and ROBERT B. JUBENVILLE v. STATE OF NEW YORK
Kirwan Law Firm, P.C. By: Terry J. Kirwan, Jr., Esq. Hon. Letitia James, New York State Attorney General By: Bonnie Gail Levy, Esq., Assistant Attorney General
Synopsis
Motion to dismiss the Claim granted; Notice of Intention failed to set forth how the State was negligent in causing Claimants' injuries and did not state a cause of action for loss of consortium. The defective Notice of Intention did not extend Claimant's time to serve and file the Claim. Cross Motion for leave to amend and/or supplement the Notice of Intention denied.
Case information
| UID: | 2021-058-005 |
| Claimant(s): | CAROL D. JUBENVILLE and ROBERT B. JUBENVILLE |
| Claimant short name: | JUBENVILLE |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 135614 |
| Motion number(s): | M-96360 |
| Cross-motion number(s): | CM-96391 |
| Judge: | CATHERINE E. LEAHY-SCOTT |
| Claimant's attorney: | Kirwan Law Firm, P.C. By: Terry J. Kirwan, Jr., Esq. |
| Defendant's attorney: | Hon. Letitia James, New York State Attorney General By: Bonnie Gail Levy, Esq., Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | February 26, 2021 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant moves to dismiss this Claim pursuant to CPLR 3211. Specifically, Defendant contends, among other things, that the Notice of Intention to File a Claim fails to satisfy the pleading requirements of Court of Claims Act § 11 (b) and thus did not extend Claimants' time to serve and file the Claim. Claimants oppose the motion, and cross-move "for leave to amend and/or supplement the Notice of Intention to File Claim pursuant to [General Municipal Law] § 50-e (6)" (Not of Cross Mot, at 1).
On August 1, 2019, Claimant Carol D. Jubenville served a Notice of Intention to File a Claim upon the Office of the New York State Attorney General by certified mail, return receipt requested (see Affirmation of Bonnie Gail Levy, Esq., Assistant Attorney General Ex 1 [Notice of Intention]; id. Ex 2 [Aff of Service of Notice of Intention attached to Verified Claim]). The Notice of Intention alleges
"[o]n June 5, 2019, at approximately 11:45 a.m., [Claimant] was lawfully walking on the sidewalk located along East Adams Street, Syracuse New York when she was caused to fall by a defect on the sidewalk (located between the cross streets of S. Townsend Street and S. State Street), namely a New York State Traffic plate that was not set flush to the sidewalk"
(id, ¶ 3 at first unnumb paragraph). The Notice of Intention states "[t]he incident occurred as a result of the negligence, carelessness and reckless of the CITY, it agents[,] servants and/or employees" (id. ¶ 3 at second unnumb paragraph [emphasis added]). No other causes of action are set forth in the Notice of Intention. Additionally, Robert B. Jubenville is not named as a Claimant in the Notice of Intention.
On November 12, 2020, a Verified Claim naming Carol D. Jubenville and Robert B. Jubenville as Claimants was filed with the Chief Clerk of the Court. The Claim was served upon the Office of the New York State Attorney General on November 16, 2020 (see Affirmation of Bonnie Gail Levy, Esq., Assistant Attorney General, ¶ 7 & Ex 2 [Claim]). The Claim alleges a cause of action for negligence on behalf of Carol D. Jubenville and a derivative claim for loss of consortium for Robert B. Jubenville. In addition to damages for personal injuries, the Claim seeks costs and disbursements and includes a demand for a jury trial.
Defendant now moves to dismiss the Claim on the ground the Court lacks personal jurisdiction over it and subject matter jurisdiction over the Claim because the Notice of Intention fails to satisfy the pleading requirements of Court of Claims Act § 11 (b) and, as such, cannot extend Claimants' time to serve and file the Claim. Claimants oppose the motion and cross-move "for leave to amend and/or supplement the Notice of Intention to File Claim pursuant to [General Municipal Law] § 50-e (6)" (Not of Cross Mot, at 1). Because Defendant's motion is addressed to this Court's jurisdiction and is potentially dispositive, the Court will address it first.
"The State's waiver of immunity from suits for money damages is not absolute, but rather is contingent upon a claimant's compliance with specific conditions placed on the waiver by the Legislature" (Lepkowski v State of New York, 1 NY3d 201, 206 [2003]; see Court of Claims Act § 8; Alston v State of New York, 97 NY2d 159, 163 [2001]). Moreover, "[b]ecause 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" (Matter of New York City Asbestos Litig., 24 NY3d 275, 281 [2014] [internal quotation marks and citations omitted]).
Initially, in response to Defendant's motion, Claimants appear to withdraw their demand for a jury trial and request for costs and disbursements (see Claimants' Memo of Law, at 5). Nevertheless, it is well settled that a jury trial is not available in the Court of Claims (see Court of Claims Act § 12 [3]; Edwards v State of New York, UID No. 2018-038-562 [Ct Cl, DeBow, J., June 27, 2018]) and an award of costs and disbursements is prohibited upon the facts of this case (see Court of Claims Act § 27; Gittens v State of New York, 175 AD2d 530, 530 [3d Dept 1991]). To the extent such relief is not withdrawn, such portions of the Claim must be dismissed.
As to the balance of Defendant's motion, Court of Claims Act § 11 (a) (i) provides that a "claim shall be filed with the clerk of the court; and . . . a copy shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for filing with the clerk of the court." "A claimant seeking to recover damages for personal injuries caused by the negligence, intentional tort or unintentional tort of an officer or employee of the State must file and serve a claim or, alternatively, a notice of intention to file such a claim, upon the Attorney General within 90 days after the accrual thereof" (Maude V. v New York State Off. of Children & Family Servs., 82 AD3d 1468, 1469 [3d Dept 2011]; see Court of Claims Act § 10 [3], [3-b]). When a notice of intention is timely served, the time to file and serve a claim alleging an unintentional tort is extended two years from the date of accrual (see Court of Claims Act § 10 [3], [3-b]).
The Court of Claims Act provides that a notice of intention "shall state the time when and place where such claim arose [and] the nature of same" (Court of Claims Act § 11 [b]; see also Lepkowski, 1 NY3d at 207). "While the statute does not require absolute exactness, the notice of intent must set forth the time and place where the claim arose with sufficient definiteness to enable the State to be able to investigate the claim promptly and to ascertain its liability under the circumstances" (Acee v State of New York, 81 AD3d 1410, 1411 [4th Dept 2011] [internal quotation marks and citations omitted]). However, it is well settled that "the defendant is not required 'to ferret out or assemble information that section 11 (b) obligates the claimant to allege'" (Morra v State of New York, 107 AD3d 1115, 1116 [3d Dept 2013], quoting Lepkowski, 1 NY3d at 208). "A claimant's failure to sufficiently particularize the nature of its claim constitutes a jurisdictional defect mandating dismissal" (Kimball Brooklands Corp. v State of New York, 180 AD3d 1031, 1032 [2d Dept 2020]). A notice of intention that fails to set forth sufficient information to satisfy the pleading requirements of Court of Claims Act § 11 (b) does not extend the time within which to file and serve the claim (see Sommer v State of New York, 131 AD3d 757, 758 [3d Dept 2015]). Thus, when the notice of intention is deficient and the related claim is filed and served more than 90 days after accrual, the claim is properly dismissed for lack of jurisdiction (see Prisco v State of New York, 62 AD3d 978, 979 [2d Dept 2009], lv denied 13 NY3d 706 [2009]).
Defendant argues that the Notice of Intention is defective because it "refers to 'the City' committing acts of negligence and not the State" (Affirmation of Bonnie Gail Levy, Esq., Assistant Attorney General ¶ 17). It is beyond dispute that a claimant must set forth how the State was negligent in causing the claimant injury (see Patterson v State of New York, 54 AD2d 147, 150 [4th Dept 1976], affd 45 NY2d 885 [1978]). Here, the Notice of Intention fails to set forth how the State was negligent in causing Claimant Carol D. Jubenville's injuries. As Defendant aptly notes, the Notice of Intention solely attributes negligent conduct to "the City," presumably a reference to the City of Syracuse (see Langner v State of New York, UID No. 2008-015-031 [Ct Cl, Collins, J., May 7, 2008] [claim dismissed for failure to comply with pleading requirements of section 11 (b) where "the allegations in the claim repeatedly reference the conduct of the County of Essex and the Town of North Hudson" and fail to set forth how the State was negligent], affd 65 AD3d 780 [3d Dept 2009]). "The mere inclusion of the State in the caption falls far short of stating a cause of action against the State of New York" (id.).
Although the Notice of Intention references "a New York State Traffic plate, that was not set flush to the sidewalk," the Court concludes that such reference informs of the location of the incident and does not specify how Defendant was negligent in causing Claimant Carol D. Jubenville's injury (see Jones v New York State Dept. of Transp., UID No. 2018-038-548 [Ct Cl, DeBow, J., May 24, 2018] ["(t)he claim allows inferences to be drawn that the traffic signals that were posted at the subject intersection or the condition of the roadway or shoulder played some role in the accident, but the claim contains only conclusory and general allegations and is bereft of any factual allegations as to the manner of the accident that would assist [the] defendant in investigating and ascertaining its liability"]; see also Mosquera v State of New York, UID No. 2018-032-008 [Ct Cl, Hard, J., Jan. 10, 2018] [finding "(the) claimant's generic allegations of 'negligence, carelessness and reckless' and that (the) defendant breached a duty to secure and maintain the premises . . . too conclusory to meet the requirements of Court of Claims Act § 11 (b)"]). In sum, Claimants failed to satisfy the pleadings requirements of Court of Claims Act § 11 (b) in asserting a cause of action for negligence on behalf of Carol D. Jubenville in the Notice of Intention and thus their time to serve a file such a claim was not extended by two years (see Sommer, 131 AD3d at 758). .
Additionally, the service of the Notice of Intention did not extend Claimants' time to serve and file a derivative claim for loss of consortium on behalf of Robert B. Jubenville as the Notice of Intention does not list Robert B. Jubenville as a Claimant or assert a cause of action for loss of consortium on his behalf (see Oestreicher v State of New York, UID No. 2011-045-012 [Ct Cl, Lopez-Summa, J., Mar. 14, 2011]). Accordingly, Claimants were obligated to serve and file a Claim alleging causes of action for negligence and loss of consortium within 90 days of accrual.
It is undisputed that the Claim accrued on June 5, 2019 (see Notice of Intention ¶ 3 at first unnumb paragraph). Thus, Claimants had until Tuesday, September 3, 2019 to serve and file the Claim (see Court of Claims Act §§ 10 [3], [3-b]; 11 [a] [i]). The Claim was neither timely served nor filed within the 90-day statutory period. Claimant filed the Claim with the Chief Clerk of the Court on November 12, 2020 and served the Claim upon the Office of the New York State Attorney General on November 16, 2020. Claimant's failure to timely serve the Claim deprives this Court of subject matter jurisdiction and mandates the dismissal of the Claim( see Finnerty v New York State Thruway Auth., 75 NY2d 721, 723 [1989]; Caci v State of New York, 107 AD3d 1121, 1122 [3d Dept 2013]).
With respect to Claimants' cross motion to "for leave to amend and/or supplement the Notice of Intention to File Claim pursuant to [General Municipal Law] § 50-e (6)" (Not of Cross Mot, at 1), the Court notes"[a] Notice of Intention to File a Claim is not a pleading and there is no provision in the Court of Claims Act for permitting an amendment of a Notice of Intention to File a Claim" (O'Brien v State of New York, UID No. 2019-054-017 [Ct Cl, Rivera, J., Apr. 18, 2019]; see Sparks v State of New York, UID No. 2017-053-538 [Ct Cl, Sampson, J., July 20, 2017]; Camara v State of New York, UID No. 2016-049-023 [Ct Cl, Weinstein, J., June 17, 2016]; Liberty Mutual v State of New York, UID No. 2014-016-022 [Ct Cl, Marin, J., June 24, 2014]). General Municipal Law § 50-e (6), the provision upon which Claimants rely in making their cross motion, has "no application to practice in the Court of Claims" (Driscoll v State of New York, UID No. 2018-044-540 [Ct Cl, Schaewe, J., July 11, 2018]). Although "Court of Claims Act § 10 (6) sets forth the procedure whereby a movant may request permission from the Court to serve and file a late claim, there is no such equivalent provision whereby a proposed movant might seek permission to file (or serve) a late notice of intention"(id. [emphasis added]). The Court declines to treat Claimants' cross motion as seeking late claim relief pursuant to Court of Claims Act § 10 (6) because in addition to adding a loss of consortium claim on behalf of Robert B. Jubenville, the amended Notice of Intention purports to replace references to "the CITY" with references to the State of New York (compare Notice of Intention ¶ 3 at second unnumb paragraph, with Affirmation of Terry J. Kirwan, Jr., Esq., Ex C [Amended Notice of Intention], ¶ 3 at second paragraph; see Oestreicher, UID No. 2011-045-012). Consequently, Claimants' cross motion for leave to amend and/or supplement the Notice of Intention is denied.
Accordingly, it is hereby:
ORDERED Defendant's Motion No. M-96360 is GRANTED and Claim No. 135614 is DISMISSED in its entirety; and it is further
ORDERED Claimants' Cross Motion No. CM-96391 is DENIED.
February 26, 2021
Albany, New York
CATHERINE E. LEAHY-SCOTT
Judge of the Court of Claims The Court considered the following in deciding these motions: (1) Notice of Motion to Dismiss, dated December 21, 2020. (2) Affirmation of Bonnie Gail Levy, Esq., Assistant Attorney General, dated December 21, 2020, with attachments (3) Notice of Cross-Motion, dated January 27, 2021. (4) Affirmation of Terry J. Kirwan, Jr., Esq., dated January 27, 2021, with attachments. (5) Claimants' Memorandum of Law, dated January 27, 2021. (6) Reply Affirmation of Bonnie Gail Levy, Esq., Assistant Attorney General, dated February 1, 2021.