Opinion
# 2018-040-070 Claim No. 129501 Motion No. M-92232
08-07-2018
In the Matter of the Claim of EDUARD SORIN v. THE STATE OF NEW YORK
Devon M. Wilt, Esq. BARBARA D. UNDERWOOD Attorney General of the State of New York By: Sean B. Virkler, Esq., AAG
Synopsis
State's Motion to Dismiss Claim on the basis it was not timely filed with the Office of the Clerk of the Court pursuant to CCA § 10(6) granted.
Case information
| UID: | 2018-040-070 |
| Claimant(s): | In the Matter of the Claim of EDUARD SORIN |
| Claimant short name: | SORIN |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 129501 |
| Motion number(s): | M-92232 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Devon M. Wilt, Esq. |
| Defendant's attorney: | BARBARA D. UNDERWOOD Attorney General of the State of New York By: Sean B. Virkler, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | August 7, 2018 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, Defendant's Motion to dismiss the Claim, pursuant to CPLR 3211(a)(2) and (8), on the basis that the Court lacks subject matter jurisdiction over the Claim and personal jurisdiction over the Defendant, as a result of Claimant's failure to timely file the Claim as required by Court of Claims Act §§ 10(3), is granted. The remainder of the Motion is denied as moot.
This Claim, which was filed with the office of the Clerk of the Court on March 30, 2017, asserts that, on February 6, 2015, Claimant was incarcerated at Riverview Correctional Facility and that, at approximately noon, he was walking on the blacktop walkway to the facility's School Building when he slipped and fell because the walkway was covered in ice (Claim, ¶¶ 3, 4).
Pursuant to the Court of Claims Act provisions applicable to personal injury actions, Claimant was required to file and serve his Claim within 90 days from the date of accrual unless a written Notice of Intention to File a Claim was served upon the Attorney General within such time period. In that case, the Claim itself was required to be filed with the office of the Clerk of the Court and served upon the Attorney General within two years after the accrual of the Claim (Court of Claims Act §10[3]). In either case, Claimant was required to initiate action within 90 days of the Claim's accrual.
Court of Claims Act § 11(a)(i) provides that the Claim shall be filed with the Clerk of the Court and that a copy shall be served upon the Attorney General within the time period provided in Section 10 of the Court of Claims Act, either personally or by certified mail, return receipt requested. The statute further provides that service by certified mail, return receipt requested, is not complete until the Claim or Notice of Intention to File a Claim is received by the Attorney General.
Pursuant to Court of Claims Act § 11(c), however, any such defect is waived unless it is raised with particularity as an affirmative defense either by motion to dismiss prior to service of the responsive pleading, or in the responsive pleading itself (see Knight v State of New York, 177 Misc 2d 181, 183 [Ct Cl 1998]).
In its Answer, filed with the office of the Clerk of the Court on March 9, 2017, Defendant asserted as its Sixth Affirmative Defense that "[t]his Court lacks subject matter jurisdiction over the [C]laim as it was not filed with the Clerk of the Court of Claims within ninety (90) days of accrual, or where a proper Notice of Intention to File a Claim has been timely and properly served, within two (2) years of accrual, as required by Sections 10 (3) … and 11 (a) of the Court of Claims Act".
In his affirmation submitted in support of the State's Motion, Defense counsel asserts that the Claim accrued on February 6, 2015 and that Claimant (pro se) served a Notice of Intention to File a Claim on May 4, 2015 (Affirmation of Sean B. Virkler, Esq., Assistant Attorney General [hereinafter, "Virkler Affirmation"], ¶¶ 3, 7, and Ex. A attached). Defendant asserts that the Notice of Intention was insufficient to extend the time to file a Claim (Virkler Affirmation, ¶ 12). Defendant further asserts that, assuming arguendo, the Notice of Intention was valid, it extended the time to serve and file the Claim to two years from the date the Claim accrued. As a result, the Claim had to be served and filed on or before February 6, 2017, but Claimant failed to do so (id., ¶ 7). The Claim was served upon Defendant on February 3, 2017 (id., ¶ 11 and Ex. B attached). However, the Claim was not filed with the office of the Clerk of the Court until March 30, 2017, more than two years after the Claim accrued and not in accordance with Court of Claims Act § 10(3) (id., ¶ 3 and Ex. C attached). Claimant has not submitted any papers in opposition to Defendant's Motion.
Court of Claims Act § 10 is more than a statute of limitations; it is a jurisdictional prerequisite to bringing and maintaining an action in this Court (Mallory v State of New York, 196 AD2d 925, 926 [3d Dept 1993]; DeMarco v State of New York, 43 AD2d 786 [4th Dept 1973], affd 37 NY2d 735 [1975]; Antoine v State of New York, 103 Misc 2d 664 [Ct Cl 1980]). Failure to timely comply with the statutory service and filing requirements of the Court of Claims Act constitutes a fatal jurisdictional defect requiring dismissal (Lyles v State of New York, 3 NY3d 396, 400-401 [2004]; Buckles v State of New York, 221 NY 418 [1917]; Langner v State of New York, 65 AD3d 780, 781 [3d Dept 2009]; Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]). The Court cannot waive a defect in jurisdiction that has been timely raised (see Thomas v State of New York, 144 AD2d 882 [3d Dept 1988]). The defect asserted was timely and properly raised with particularity in Defendant's verified Answer as set forth above, in accordance with Court of Claims Act § 11(c) (Czynski v State of New York, 53 AD3d 881, 882 [3d Dept 2008], lv denied 11 NY3d 715 [2009]; Villa v State of New York, 228 AD2d 930, 931 [3d Dept 1996], lv denied 88 NY2d 815 [1996]).
Based upon the foregoing, Defendant's Motion is granted and the Claim is dismissed for failure to timely file it in accordance with Court of Claims Act § 10(3). The remainder of the Motion is denied as moot.
August 7, 2018
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims The following papers were read and considered by the Court on Defendant's Motion to dismiss: Papers Numbered Notice of Motion, Affirmation in Support and Exhibits Attached 1 Filed Papers: Claim, Answer