Opinion
# 2016-050-044 Claim No. 125329 Motion No. M-87947 Motion No. CM-88338
07-18-2016
THE PROVIDENCE CASCONE FAMILY TRUST v. THE STATE OF NEW YORK
Cascone and Collyer, Attorneys at Law By: Kenneth T. Cascone, Esq. Hon. Eric T. Schneiderman, NYS Attorney General By: John Belford IV, Assistant Attorney General
Synopsis
Claimant's motion for summary judgment is denied for failure to comport with the requirements of CPLR 2214. Defendant's cross-motion to dismiss is granted. The claim does not meet the specificity required by the Court of Claims Act 11(b), and further, the claim is time-barred.
Case information
| UID: | 2016-050-044 |
| Claimant(s): | THE PROVIDENCE CASCONE FAMILY TRUST |
| Claimant short name: | CASCONE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 125329 |
| Motion number(s): | M-87947, CM-88338 |
| Cross-motion number(s): | |
| Judge: | STEPHEN J. LYNCH |
| Claimant's attorney: | Cascone and Collyer, Attorneys at Law By: Kenneth T. Cascone, Esq. |
| Defendant's attorney: | Hon. Eric T. Schneiderman, NYS Attorney General By: John Belford IV, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | July 18, 2016 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The claimant moves for summary judgment pursuant to CPLR 3212. The motion is opposed by the defendant. The defendant cross-moves to dismiss the claim pursuant to Court of Claims Act (CCA) §§ 10 (1), 10 (3) and 11 (b).
One seeking the drastic relief (see Drever v State of New York, 45 Misc 3d 224 [Ct Cl, 2014] of summary judgment is required to demonstrate in the first instance, that is, upon the papers submitted in support of the motion, entitlement to judgment as a matter of law; this is referred to as the movant's "initial burden" on the motion. Pursuant to CPLR 3212 (b), the motion must be supported, inter alia, by copies of "the pleadings". In the instant case, the original motion papers submitted by claimant did not include a copy of the claim. The movant's initial burden was not met. Accordingly, the motion is denied (see Senor v State of New York, 23 AD3d 851 [3d Dept 2005]; Davis v State of New York, UID No. 2016-041-018 [Ct Cl, Milano, J., April 18, 2016]).
Defendant's motion to dismiss is based upon, inter alia, failure to accurately state the date the claim accrued and the actual place where the claim occurred. Further, the defendant alleges the action was filed beyond the statute of limitations time period.
Court of Claims Act § 11(b) provides that "[t]he claim shall state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and . . . the total sum claimed . . .". The strict pleading requirements of CCA § 11(b) have been consistently upheld by the Courts. Dismissal for lack of jurisdiction is warranted if the claim does not meet the pleading requirements (see Lepkowski v State of New York, 1 NY3d 201 [2003]; Weaver v State of New York, 82 AD3d 878 [2d Dept 2001]; Hunter v State of New York, 72 AD3d 1030 [2d Dept 2010]).
In the instant case the claim does not state when the alleged event occurred ("sometime in the late 1960's or early 1970's") nor does it specifically state where it occurred ("on the property owned by Trust...approximately 38.4 acres..."). Further, the claim is time barred under CCA § 10 which requires a 90-day notice period (see CCA § 10[3]) and a three (3) year statute of limitations period (10[1]). Here, the claim states, "[t]his claim accrued many years ago in the late 1960's or early 1970's when the LIE was first constructed." Since the claim lacks the specificity strictly required by the CCA § 11 (b) and was filed well beyond the allowable time in CCA §§ 10 (1) and 10 (3), it must be dismissed.
Based upon the foregoing, claimant's motion is denied, and defendant's cross-motion is granted. The claim is hereby dismissed.
July 18, 2016
Hauppauge, New York
STEPHEN J. LYNCH
Judge of the Court of Claims The following papers were read and considered by the Court on the claimant's motion for summary judgment: 1. Notice of Motion with Exhibits A through I. 2. Cross Motion with Exhibits 1 through 9. 3. Claimant's Reply to Defendant's Cross Motion.