Opinion
# 2019-040-003 Claim No. 130720 Motion No. M-93004
01-16-2019
BRANDON AND ALEXANDRA B. TYOE v. THE STATE OF NEW YORK
Brandon and Alexandra B. Tyoe, Pro Se LETITIA JAMES Attorney General of the State of New York By: G. Lawrence Dillon, Esq., AAG
Synopsis
State's Motion to dismiss on basis Claimants failed to timely serve the Claim in accordance with Court of Claims Act §§ 10(3) & 11(a) granted.
Case information
| UID: | 2019-040-003 |
| Claimant(s): | BRANDON AND ALEXANDRA B. TYOE |
| Claimant short name: | TYOE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | Caption amended to reflect the State of New York as the proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 130720 |
| Motion number(s): | M-93004 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Brandon and Alexandra B. Tyoe, Pro Se |
|---|---|
| Defendant's attorney: | LETITIA JAMES Attorney General of the State of New York By: G. Lawrence Dillon, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | January 16, 2019 |
| 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 Claimants' failure to timely serve the Claim as required by Court of Claims Act §§ 10(3) and 11(a)(i), is granted. The remainder of the Motion is denied as moot.
This pro se Claim, which was filed with the office of the Clerk of the Court on December 15, 2017, alleges that, on May 16, 2017, New York State Department of Transportation (hereinafter, "DOT") employees were operating construction equipment and that they used Claimants' driveway to turn around. It is asserted that the rear of one of the DOT machines struck Claimants' home, causing damage to the property (Small Claim Form, ¶ 3, attached to Claim).
Pursuant to the Court of Claims Act provisions applicable to property damage actions, Claimants were required to file and serve their 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 and served upon the Attorney General within two years after the accrual of the Claim (to the extent Claimants assert injuries caused by negligence or unintentional torts) (Court of Claims Act §§ 10[3]; Kairis v State of New York, 113 AD3d 942 [3d Dept 2014]). In either case, Claimants were 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. It is well established that failure to timely serve the Attorney General in strict compliance with Court of Claims Act § 11 gives rise to a jurisdictional defect (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 723 [1989]; Matter of Dreger v New York State Thruway Auth., 177 AD2d 762, 763 [3d Dept 1991], affd 81 NY2d 721 [1992]; Suarez v State of New York, 193 AD2d 1037, 1038 [3d Dept 1993]).
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 February 16, 2018, Defendant asserted as its Third Affirmative Defense that "[t]his Court lacks subject matter jurisdiction over the [C]laim and personal jurisdiction over the [D]efendant, the State of New York, as the [C]laim is untimely in that neither the [C]laim nor a [N]otice of [I]ntention was served within ninety (90) days of the accrual of the [C]laim as required by Court of Claims Act Section11 and Court of Claims Act Section 10(3)."
In his affirmation submitted in support of the State's Motion, Defense counsel asserts that Claimants served the Claim upon the Attorney General on January 16, 2018 (Affirmation of G. Lawrence Dillon, Esq., Assistant Attorney General, ¶ 2, and Ex. B attached).
Here, the Claim was served on January 16, 2018, which is more than 90 days after the Claim for property damage accrued on May 16, 2017. Claimants have 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 serve it in accordance with Court of Claims Act §§ 10(3), and 11(a)(i). The remainder of the Motion is denied as moot.
The Court notes that, by letter dated October 22, 2018, the parties were notified that the trial of this Claim was scheduled for March 21, 2019 at the Court of Claims in Utica, New York. That trial is now unnecessary.
January 16, 2019
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