Opinion
# 2018-054-088 Claim No. 131359 Motion No. M-92327
08-30-2018
OHN McLOUGHLIN v. THE STATE OF NEW YORK
CHELLI & BUSH By: Joseph A. D'Agostino, Esq. HON. BARBARA D. UNDERWOOD Attorney General for the State of New York By: Lawrence E. Kozar, Assistant Attorney General
Synopsis
Defendant's motion to dismiss granted, service on the State untimely.
Case information
| UID: | 2018-054-088 |
| Claimant(s): | JOHN McLOUGHLIN |
| Claimant short name: | McLOUGHLIN |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 131359 |
| Motion number(s): | M-92327 |
| Cross-motion number(s): | |
| Judge: | WALTER RIVERA |
| Claimant's attorney: | CHELLI & BUSH By: Joseph A. D'Agostino, Esq. |
| Defendant's attorney: | HON. BARBARA D. UNDERWOOD Attorney General for the State of New York By: Lawrence E. Kozar, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | August 30, 2018 |
| 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 defendant's motion to dismiss:
Notice of Motion, Attorney's Supporting Affirmation and Exhibit.........................1
Affirmation in Opposition........................................................................................2
The claim alleges that claimant was injured on May 9, 2017 in a motor vehicle accident during the course of his employment with the New York State Department of Motor Vehicles. Defendant moves to dismiss the claim on the ground that it was untimely served on May 2, 2018. Claimant concedes that he failed to timely serve and file his claim (Claimant's Affirmation in Opposition, ¶¶ 2-3).
The Court also notes that the claim was untimely filed on April 26, 2018.
The service requirements set forth in Court of Claims Act §§ 10 and 11 are jurisdictional in nature and require strict compliance as a precondition of suit against the State (see Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]). Both service and filing of the claim must occur within the statutory time period mandated by the Court of Claims Act (see Dreger v New York State Thruway Auth., 81 NY2d at 724). A failure to comply with any of the service provisions is a jurisdictional defect compelling the dismissal of the claim (see Kolnacki v State of New York, 8 NY3d 277, 281 [2007] ["(t)he failure to satisfy any of the (statutory) conditions is a jurisdictional defect"]; Welch v State of New York, 286 AD2d 496, 497-98 [2d Dept 2001]).
Since the claim warrants dismissal because it is jurisdictionally defective, the Court need not reach the issue of whether the claim also warrants dismissal pursuant to Workers' Compensation Law § 29 (6). --------
Accordingly, defendant's motion to dismiss Claim No. 131359 is hereby GRANTED.
August 30, 2018
White Plains, New York
WALTER RIVERA
Judge of the Court of Claims