Opinion
# 2017-050-059 Claim No. 124864 Motion No. M-91264 Cross-Motion No. CM-91309
11-15-2017
JOSE RIVAS v. THE STATE OF NEW YORK
Law Offices of John Riconda, P.C. By: John Riconda, Esq. Hon. Eric T. Schneiderman, NYS Attorney General By: John L. Belford, IV, Assistant Attorney General
Synopsis
Defendant's motion to dismiss the claim arising from injuries alleged to have been sustain in a bicycle accident is granted. Claimant cross motion for permission to file a late claim is denied. The service of the claim on the AG was not made until 108 days after the accrual of the claim (18 days after the filing with the Clerk); the claim is jurisdictionally defective and is barred.
Case information
| UID: | 2017-050-059 |
| Claimant(s): | JOSE RIVAS |
| Claimant short name: | RIVAS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124864 |
| Motion number(s): | M-91264 |
| Cross-motion number(s): | CM-91309 |
| Judge: | STEPHEN J. LYNCH |
| Claimant's attorney: | Law Offices of John Riconda, P.C. By: John Riconda, Esq. |
| Defendant's attorney: | Hon. Eric T. Schneiderman, NYS Attorney General By: John L. Belford, IV, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | November 15, 2017 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
In an action for damages for injuries alleged to have been sustained in a bicycle accident, the defendant moves to dismiss the claim pursuant to Court of Claims Act (CCA) §§ 10 and 11. Defendant's motion was filed on October 24, 2017. By notice of cross motion filed November 1, 2017 , the claimant opposes defendant's motion and cross-moves for an order granting leave to serve a late claim pursuant to CCA § 10 (6) and deeming the claim served on September 24, 2014 timely served.
The accident upon which this claim is based is alleged to have occurred on June 8, 2014 at 2073 Jericho Turnpike, Commack, New York. The claim herein was served upon the Office of the Attorney General on September 24, 2014. In its answer served on October 31, 2014, the defendant raised affirmative defenses including the defense that:
"[t]he Court lacks jurisdiction over the claim due to claimant's failure to timely serve the claim or any notice of intention upon the Attorney General's Office and to timely file the claim or any notice of intention with the Court of Claims, in accordance with Court of Claims Act Sections 10 and 11, which requires service and filing of the claim or the notice of intention within ninety days of the accrual date" (see Exhibit B to defendant's affirmation dated October 23, 2017).
Section 10 (3) of the CCA requires that claims for negligence be brought within 90 days after accrual (unless resort is made by claimant to a mechanism for extension of that time through service of a "Notice of Intention to File a Claim" which did not occur in this case). In order to be timely pursued within such 90 day period, a claim must be both filed with the Clerk of this Court and served upon the Office of the Attorney General (by certified mail, return receipt request, or personally) within such 90 day period. Here, although the claim was filed on August 20, 2014, it was served on the Office of the Attorney General on September 24, 2014, which claimant acknowledges was 18 days beyond the 90 day period of limitations for the subject claim.
First, the cross motion insofar as it seeks late claim relief pursuant to CCA § 10 (6) must be denied. A motion for late claim relief must be made within the period of limitations set forth in CPLR Article 2 applicable to the claim in question (see CCA 10 [6]; CPLR 214; Robert v City Univ. of New York, 41 AD3d 825 [2d Dept 2007]; Dolberry v State of New York, 71 AD3d 948 [2d Dept 2010]; Bergmann v State of New York, 281 AD2d 731 [3d Dept 2001]; Sutton v State of New York, UID No. 2016-045-015 [Ct Cl, Lopez-Summa, J., June 24, 2016]). In this case, the claimant's cross motion for late claim relief was served on October 30, 2017 and filed November 1, 2017, both dates being months beyond the expiration of the applicable three year statute of limitations (CPLR 214). Therefore, the motion itself being untimely, the Court is without discretion to extend the time for bringing a claim. The claimant's efforts to avoid the requirements of CCA § 10 (6) by denomination of its cross motion as one requesting relief that the claim be deemed timely served, or that service be deemed made "nunc pro tunc" are unavailing (see Heiberger v State of New York, UID No. 2012-028-540 [Ct Cl, Sise, J., Agusut 23, 2012]; Hicks v State of New York, UID No. 2017-15-228 [Ct Cl, Collins, J., May 5, 2017]; Smith v State of New York, 53 AD2d 756 [3d Dept 1976]). The cross motion is therefore denied.
Turning to the defendant's motion to dismiss, it is well establish that, pursuant to the Court of Claims Act § 10 and 11, one seeking to timely assert a claim for negligence must serve and file a claim within 90 days measured from the date the claim accrued. As noted, the extension of time for bringing a claim, which is available to one who serves a notice of intention to file a claim within such 90 days period, is inapplicable in this case because no notice of intention was served in this case. Because it is conceded that service of the claim upon the Attorney General was not made until 108 days after the accrual of this negligence claim (18 days after the filing with the Clerk of the Court), the claim is jurisdictionally defective and is barred. Therefore, the motion is granted and the claim is dismissed (see Avila v State of New York, UID No. 2013-028-500 [Ct Cl, Sise, J., Jan, 8, 2013]; DeFilippis v State of New York, 157 AD2d 826 [2d Dept 1990]; Prisco v State of New York, 62 AD3d 978 [2d Dept 2009]; Bennet v State of New York, 106 AD3d 1040 [2d Dept 2013]).
November 15, 2017
Hauppauge , New York
STEPHEN J. LYNCH
Judge of the Court of Claims The following papers were read and considered on the defendant's motion to dismiss and the claimant's cross motion for leave to serve a late claim: 1. Notice of Motion, Affirmation in Support with Exhibits. 2. Notice of Cross Motion, Affirmation in Support with Exhibits. 3. Defendant's Affirmation in Further Support of Motion to Dismiss and Opposition to Claimant's Cross Motion.