Opinion
# 2020-058-056 Motion No. M-96137
12-09-2020
LAST CHANCE RECYCLING, INC. v. STATE OF NEW YORK
Barry M. Schreibman, Esq. Hon. Letitia James, New York State Attorney General By: No Appearance
Synopsis
Motion for permission to serve and file a late claim denied as unnecessary as the Claim was timely filed and served; Claim accrued upon the formal termination of the administrative proceedings and time to serve and file the Claim was tolled pursuant to Executive Order 202.8 et seq.
Case information
| UID: | 2020-058-056 |
| Claimant(s): | LAST CHANCE RECYCLING, INC. |
| Claimant short name: | LAST CHANCE RECYCLING, INC. |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | The caption is amended sua sponte for the reasons set forth in this Decision and Order. |
|---|---|
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | NONE |
| Motion number(s): | M-96137 |
| Cross-motion number(s): | |
| Judge: | CATHERINE E. LEAHY-SCOTT |
| Claimant's attorney: | Barry M. Schreibman, Esq. |
| Defendant's attorney: | Hon. Letitia James, New York State Attorney General By: No Appearance |
| Third-party defendant's attorney: | |
| Signature date: | December 9, 2020 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Movant Last Chance Recycling, Inc. seeks permission to serve and file a late claim pursuant to Court of Claims Act § 10 (6). The proposed claim alleges the Department of Transportation (DOT) negligently failed to process a check and documents effectuating a settlement of an order suspending Movant's right to operate its vehicles (Suspension Order) (see Verified Complaint ¶¶ 3-5). The Suspension Order was issued on or about November 7, 2019 due to Movant's failure to submit five driver vehicle inspection reports (see id. ¶ 3).
By Order of Acting Presiding Judge Richard E. Sise dated November 23, 2020 and entered November 25, 2020, this motion was transferred from the Hon. Diane L. Fitzpatrick to the motion calendar of the undersigned. The undersigned kept the originally designated return date of December 2, 2020.
The parties agreed to settle the Suspension Order whereby Movant would accept liability, cure the violations, and pay a reduced penalty and DOT would revoke the Suspension Order (see id. ¶ 4). Movant claims it promptly sent a check and required paperwork to effectuate the settlement, but DOT refused to process the settlement due to "significant delay" between the settlement of the Suspension Order and its receipt of the required paperwork from Movant (id. ¶ 5).
On or about December 5, 2019, the assigned Administrative Law Judge (ALJ) agreed with DOT with regard to Movant's alleged delay, rejected the settlement, and imposed the full penalty under the Suspension Order (see id.; Memo of Law, at 4 n 1). However, following an administrative hearing on January 10, 2020, the parties' settlement agreement was reinstated, and the Suspension Order was "dissolved" (Verified Complaint ¶ 8). Movant now seeks money damages resulting from DOT's failure to timely process the settlement. Defendant has not responded to the 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]).
It is "the general principle that a claim accrues for purposes of the Court of Claims Act when damages are reasonably ascertainable" (Augat v State of New York, 244 AD2d 835, 836 [3d Dept 1997], lv denied 91 NY2d 814 [1998]; see Prisco v State of New York, 62 AD3d 978, 978 [2d Dept 2009]). Where, as here, the outcome of an administrative proceeding forms the basis of a claim, accrual is found to occur sometime after formal termination when the claimant was made aware of the outcome (see e.g. Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687, 688 [3d Dept 2000] [claim accrued when notice of violation and corresponding penalty was withdrawn by the Department of Agriculture and Markets]; see also Huntington v State of New York, UID No. 2020-028-530 [Ct Cl, Sise, P.J., Sept. 28, 2020] [claim challenging decision of New York Human Rights Division accrued when the claimant received notice of the Commissioner's final order denying the claimant's complaint]).
Here, administrative proceedings were formally terminated on January 10, 2020 when "the ALJ issued an 'Order After Hearing' which reinstated the [s]ettlement amount for [Movant's] fines and--finally--dissolved the Suspension Order" (Verified Complaint ¶ 8). The Court concludes that Movant received notice of the formal termination of the Suspension Order no earlier than January 10, 2020. Thus, the Court concludes that the Claim accrued on January 10, 2020. Accordingly, Claimant was required to file and serve the Claim or serve a Notice of Intention to file such a Claim on or before April 9, 2020 (see Court of Claims Act §§ 10 [3]; 11 [a] [i]).
By Executive Order 202.8 dated March 20, 2020, Governor Andrew M. Cuomo tolled "any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state" until April 19, 2020 (Executive Order [Cuomo] No. 202 [9 NYCRR 8.202.8]; see also Administrative Order of Acting Presiding Judge Richard E. Sise, dated March 16, 2020). This toll was modified and extended by subsequent executive orders until November 3, 2020 (see Executive Order [Cuomo] No. 202 [9 NYCRR 8.202.67]).
Seventy (70) days elapsed between the date of accrual (January 10, 2020) and the issuance of Executive Order 202.8 (March 20, 2020). Consequently, Movant had until November 23, 2020, 20 days from the end of the tolling period on November 3, 2020, to timely serve and file his claim.
This motion and attached proposed claim were filed during the tolling period on November 2, 2020. Additionally, the affidavit of service filed with the Chief Clerk of the Court indicates that the motion and proposed claim were personally served upon the Office of the New York State Attorney General on November 12, 2020 (see Aff of Service, sworn to on Nov. 16, 2020). Because the Claim was timely served and filed, the motion is denied as unnecessary (see Ambrose v State of New York, UID No. 2015-045-025 [Ct Cl, Lopez-Summa, J., July 29, 2015]).
The Court, however, deems it appropriate to address certain subject matter jurisdictional defects presented in the proposed claim (see Roberts v State of New York, 4 Misc 3d 768, 773 [Ct Cl 2004]; Lublin v State of New York, 135 Misc 2d 419, 421 [Ct Cl 1987], affd 135 AD2d 1155 [1st Dept 1987], lv denied71 NY2d 802 [1988]). The Notice of Motion lists as Defendants "NYS Department of Transportation and Marie Therese Dominguez, in her capacity as Commissioner of NYS Dept. of Transportation."
The Court of Claims is a court of limited jurisdiction, charged with "exclusive jurisdiction over actions for money damages against the state," based upon the acts or omissions of its agencies or employees, where the State is the real party in interest (Monreal v New York State Dept. of Health, 38 AD3d 1118, 1119 [3d Dept 2007]; see NY Const, art VI, § 9; Court of Claims Act § 9; Woodward v State of New York, 23 AD3d 852, 855-856 [3d Dept 2005], lv dismissed 6 NY3d 807 [2006]). The State of New York is the real party in interest for claims asserted against a State department or agency or a State Officer for conduct undertaken in an official capacity and in the exercise of a governmental function (see Morell v Balasubramanian, 70 NY2d 297, 300 [1987]; (Kim v NYS DOT Transp. Maintenance, UID No. 2019-053-549 [Ct Cl, Sampson, J., Oct. 25, 2019]; Cook v State of New York, UID No. 2016-009-027 [Ct Cl, Midey, Jr., J., Sept. 15, 2016]).
It is well settled that this Court's limited jurisdiction does not extend to claims against individual defendants (see Court of Claims Act § 9; Smith v State of New York, 72 AD2d 937, 938 [4th Dept 1979] ["the jurisdiction of the Court of Claims is limited and does not extend to claims against individuals"]; Antonecchia v Goord, UID No. 2006-010-030 [Ct Cl, Ruderman, J., Sept. 18, 2006] [dismissing claim against Commissioner of the Department of Correctional Services and another individually named defendant for lack of jurisdiction]). Consequently, Marie Therese Dominguez is not a proper Defendant in the Court of Claims.
Additionally, the New York State Department of Transportation is a department of the State of New York (see NY Const, art V, § 2; Transportation Law § 11) that lacks a corporate entity independent of the State (see Kim, UID No. 2019-053-549; Wilson v State of New York, UID No: 2011-034-559 [Ct Cl, Hudson, J., Oct. 28, 2011]). Consequently, the caption is amended sua sponte to reflect the State of New York as the only proper defendant over which this Court has jurisdiction.
Accordingly, Movant is directed to submit the Court's filing fee pursuant to Court of Claims Act § 11-a and the Clerk of the Court is directed to deem the proposed claim attached to Movant's motion papers (denominated "Verified Complaint") as the Claim on the date the motion papers were filed. Although deemed timely filed, the Claim remains subject to any jurisdictional objections Defendant may have (see Cangiolosi v State of New York, UID No. 2014-045-023 [Ct Cl, Lopez-Summa, J., July 25, 2014]). Defendant is directed to serve and file its Verified Answer within forty (40) days of the date of filing of this Decision and Order.
Accordingly, it is hereby
ORDERED that Motion No. M-96137 is denied in its entirety; and it is further
ORDERED that Movant is directed to submit the Court's filing fee pursuant to Court of Claims Act § 11-a and the Clerk of the Court is directed to deem the proposed claim (denominated "Verified Complaint") attached to Movant's motion papers as a Claim on the date the motion papers were filed. The Claim shall be subject to any jurisdictional objections Defendant may have; and it is further
ORDERED that the Court amends the caption sua sponte to reflect the State of New York as the only proper Defendant; and it is further
ORDERED that, except as extended by CPLR 3211 (f), Defendant is directed to serve and file its Verified Answer within forty (40) days of the date of filing of this Decision and Order.
December 9, 2020
Albany, New York
CATHERINE E. LEAHY-SCOTT
Judge of the Court of Claims The Court considered the following in deciding this motion: (1) Notice of Motion, dated November 2, 2020. (2) Affirmation of Barry M. Schreibman, Esq., in Support of Motion, dated October 29, 2020. (3) Summons, dated October 29, 2020. (4) Verified Complaint, dated October 25, 2020. (5) Memorandum of Law, dated October 27, 2020. (6) Affidavit of Service, sworn to on November 16, 2020. (7) Transfer Order, dated November 23, 2020 and entered November 25, 2020.