Opinion
# 2017-045-002 Claim No. 127898 Motion No. M-89155
01-09-2017
PATEL URVASHI v. THE STATE OF NEW YORK
Patel Urvashi, Pro Se By: No Appearance Hon. Eric T. Schneiderman, Attorney General By: Robert E. Morelli, Assistant Attorney General
Synopsis
defendant's motion to dismiss
Case information
| UID: | 2017-045-002 |
| Claimant(s): | PATEL URVASHI |
| Claimant short name: | URVASHI |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption has been amended, sua sponte, to reflect The State of New York as the only properly named defendant. |
|---|---|
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 127898 |
| Motion number(s): | M-89155 |
| Cross-motion number(s): | |
| Judge: | GINA M. LOPEZ-SUMMA |
| Claimant's attorney: | Patel Urvashi, Pro Se By: No Appearance |
| Defendant's attorney: | Hon. Eric T. Schneiderman, Attorney General By: Robert E. Morelli, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 9, 2017 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read and considered by the Court on this motion: Defendant's Notice of Motion and Defendant's Affirmation with annexed Exhibits A-C, Defendant's Amended Notice of Motion and Defendant's Affirmation with annexed Exhibits A-C and the filed Claim.
Defendant, the State of New York, has brought this motion pursuant to CPLR 3211 (a)(1), (2), (7) and (8) and Court of Claims Act §§ 10 and 11 seeking an order dismissing the claim. Claimant, Patel Urvashi, a pro se litigant, did not oppose this motion.
Claimant alleges that on or about February 5, 2016 the door to her vehicle was damaged when three snow plows passed by her vehicle and pushed snow against her vehicle door. At the time of the incident she had stopped her vehicle on the side of the Northern State Parkway in order to allow the snow plows to pass.
Defendant seeks dismissal of the claim based upon claimant's failure to timely serve the claim as well as claimant's failure to properly serve the claim either by personal service or by certified mail, return receipt requested as required by Court of Claims Act §§ 10 and 11 (a) (i). Defendant argues, that as a result, the Court lacks jurisdiction over the claim.
Court of Claims Act § 10 sets forth, inter alia, that a claim to recover damages to property caused by the negligence of the state, shall be filed and served upon the attorney general within 90 days after the claim accrues, unless a notice of intention to file a claim was served upon the attorney general whereby, the claim shall be filed and served within two years after the accrual of the claim. Court of Claims Act § 11 (a) (i) sets forth, inter alia, that a claim must be served upon the attorney general either personally or by certified mail return receipt requested.
In support, defendant established that the claim was served upon the attorney general on August 18, 2016 by priority mail which was certified but unaccompanied by a request for a return receipt. The Court notes that there is no affidavit of service attached to the claim which was filed with the Court on May 4, 2016 and that the claim sets forth that a verbal notice of intention to file a claim was made, which is impermissible under the law. Thus in order to be timely the instant claim had to be served upon the attorney general by May 5, 2016. Moreover, failure to request a return receipt renders the service of a claim defective (Schaeffer v State of New York, 145 Misc 2d 135 [Ct Cl 1989]).
The Court of Appeals has long held that "[b]ecause suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed" (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]). Accordingly, a claimant who has not met the literal requirements of the Court of Claims Act has not properly commenced his action (Lichtenstein v State of New York, 93 NY2d 911, 913 [1999]). Claimant's failure to timely and properly serve the claim deprives the Court of jurisdiction over the claim. The Court need not address defendant's remaining arguments. Based upon defendant's motion and the absence of any contrary evidence from the claimant, the motion is granted and the claim is hereby dismissed.
January 9, 2017
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims