Opinion
Claim No. 137929
11-22-2022
D'Ann McCoy, D'Mar McCoy and D.O., a Minor Individually by and Through his Parent D'Ann McCoy, Claimants, v. The State of New York [1], Defendants.
For Claimant: D'Ann McCoy, Pro Se For Defendant: Hon. Letitia A. James, Attorney General of the State of New York By: Philip J. Dillon, Esq., Assistant Attorney General
Unpublished Opinion
For Claimant: D'Ann McCoy, Pro Se
For Defendant: Hon. Letitia A. James, Attorney General of the State of New York
By: Philip J. Dillon, Esq., Assistant Attorney General
Hon. JAVIER E. VARGAS, Judge.
Papers Considered:
Notice of Motion, Affirmation & Exhibit 1-4
Opposition to Motion to Dismiss 5-7
Reply Affirmation 8-9
Claimant's Response to Defendant's Reply Affirmation 10-12
Upon the foregoing papers and for the following reasons, the Motion by Defendant State of New York (hereinafter "State"), to dismiss the Claim filed by Claimants D'Ann McCoy, D'Mar McCoy, and her child, D.O. (hereinafter "Claimants"), is granted in accordance with the following decision.
On June 29, 2022, the Claimants, who are Pennsylvania residents, filed a Claim against the State and the Office of the New York City Comptroller (hereinafter "NYC Comptroller") in the New York State Court of Claims, seeking monetary damages for "gross negligence of the New York roadways ongoing unsafe and treacherous conditions resulting in [a one car] high velocity collision[,] property damage, panic and anxiety attacks and instant infliction of traumatic emotional distress for D'Ann McCoy, D'Mar McCoy and D.O." (Claim at 1, ¶ 1). In support of her monetary Claim, the Claimants attached the following: a NYC Vehicular Property Damage Claim Form dated April 1, 2021, which she filed with the NYC Comptroller; a quote from Bud's Auto Service Inc. dated March 12, 2021; an invoice from J & M General Auto Repair dated January 4, 2021; and an Authorization to Tow dated January 4, 2021 from Autorama Enterprises.
The Claim itself does not state the date or time of the accident or any information or details about where the accident occurred, albeit that information is provided on the attached New York City's Vehicular Property Damage Claim Form (Claim's Exhibit B).
On August 8, 2022, the State filed the instant Notice of Motion to dismiss the Claim pursuant to CPLR 3211 and Court of Claims Act §§ 10 and 11, arguing that the NYC Comptroller is an improperly named defendant in a Court of Claims action whose jurisdiction involves solely the State of New York. The State also argues that the Claim must be dismissed as untimely filed and served more than 90 days after accrual in violation of Court of Claims Act § 10(3), and fails to comply with the specificity requirements as to time when, date and place of the occurrence pursuant to Court of Claims Act § 11(b).
In an Affirmation in Opposition filed on August 15, 2022, the Claimants acknowledge that their car accident occurred on January 4, 2021, but argues that they filed their property damage claim timely with the NYC Comptroller in April 2021, and that office forwarded the Claim to the Office of the Attorney General. They further argue that since the so-called "notice of intention" was forwarded to the Attorney General's Office, the Claim was timely filed within two years of its accrual thereby satisfying the requirement under Court of Claims Act § 10(3). Moreover, they contend that the Claim satisfies the requirements of Court of Claim Act § 11(b) and does not lack specificity since the State acknowledged in its arguments that the accident occurred in January 2021 at the entrance to the Hudson Parkway by the exit of the George Washington Bridge.
By Reply Affirmation filed on September 3, 2022, the State argues that service of a Claim which is not in accordance with Court of Claims Act §§ 10 and 11 does not confer personal jurisdiction over the State. Per the State, Claimants did not properly serve the State with a notice of intention to file a Claim by certified mail, return receipt within ninety days of the accrual date. Furthermore, there is no evidence to support that the NYC Comptroller did or would in their normal course of business forward a claim meant for use by that specific agency to the Attorney General's Office. The State provides an Affidavit from an Attorney General's employee, who states that "no record was located establishing that the Office of [the] Attorney General was served with either a Notice of Intention or Claim in the above-referenced matter prior to being served on July 1, 2022."
Claimants filed a Response to the State's Reply on September 1, 2022, arguing that the "notice of claim" filed with the NYC Comptroller within ninety days provides notice to the State as the NYC Comptroller and the Office of the Attorney General are one entity. They further argue that this satisfied the notice requirement of New York State General Municipal Law § 50-e which states that a notice of claim upon the City must be properly served within ninety days from the date of occurrence. Following its review of the submissions, this Court disagrees with the Claimants' arguments.
Pursuant to Court of Claims Act § 10(3), a claimant who seeks to recover damages for personal injuries caused by the negligence or unintentional tort of a State employee or officer in the Court of Claims, shall file a claim and serve said claim "upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after the accrual of such claim" (Brown v New York State Bd. of Parole, 11 A.D.3d 842, 843 [3d Dept. 2004]; see Lepkowski v State of New York, 1 N.Y.3d 201, 209 [2003]). The Claim shall be simultaneously filed with the "clerk of the court; and * * * a copy shall be served personally or by certified mail, return receipt requested, upon the [A]ttorney [G]eneral" (Court of Claims Act § 11[a][i]). Thus, the requirement that the Attorney General "shall be served" with the Claim within the statutory time is "jurisdictional in nature and, therefore, must be strictly construed" (Finnerty v New York State Thruway Auth., 75 N.Y.2d 721, 722 [1989]). 'Failure to comply with either the filing or service provisions of the Court of Claims Act results in a lack of subject matter jurisdiction requiring dismissal of the claim' (Hatzfeld v State of New York, 104 A.D.3d 1165,1166 [4th Dept. 2013]; see Gang v State of New York, 177 A.D.3d 1300 [4th Dept. 2019]).
Applying these legal principles to the case at bar, the Claim must be dismissed as untimely. The record reflects that this Claim accrued on the day of the car accident on or about January 4, 2021. Approximately one year and six months later, Claimants filed a Claim with the Clerk of this Court on June 29, 2022, and served the Attorney General with the Claim on July 1, 2022. To satisfy the notice requirement, Claimants either should have filed a Claim or serve the Attorney General with a Notice of Intention to file a Claim on or before April 4, 2021. Contrary to Claimants' arguments, the NYC Comptroller is not an agency of the State of New York so service upon the NYC Comptroller does not satisfy the notice requirement of Court of Claims § 10 (3). The State, its Attorney General and the NYC Comptroller are completely separate entities governed under distinct statutory requirements.
Service upon the Attorney General is one of the mandatory terms and conditions required by statute in order to commence an action against the State (see Court of Claims Act § 10[3]; Dreger v New York State Thruway Auth., 81 N.Y.2d 721, 724 [1992]). On the other hand, tort actions brought against the City of New York are commenced by delivery of a notice of claim to the NYC Comptroller within ninety 90 days of accrual pursuant to New York State General Municipal Law § 50-e. This Court may not rule on whether Claimants appropriately noticed their action with the NYC Comptroller; however, it is clear from this record that Claimants failed to properly notice the Attorney General on a timely basis. Having failed to comply with the provisions of Court of Claims Act § 10(3), this Court finds that the Claim must be dismissed for untimeliness and for lack of subject matter jurisdiction (see Hatzfeld v State of New York, 104 A.D.3d at 1166) . The State's sufficiency argument is moot.
Tort claims against certain NYC authorities such an NYC Transit, NYC Housing Authority, Triboro Bridge and Tunnel, Port Authority of NY and N.J. Metropolitan Transportation, New York City Health and Hospitals, etc. must be served directly upon the authority or its designated agents (see generally Filing a claim with the Comptroller's Office, NYC Comptroller website )
Accordingly, it is ORDERED that the State's Motion No. M-98392 is granted, and Claim No. 137389 is hereby dismissed for lack of subject matter jurisdiction.