Opinion
# 2015-009-036 Claim No. 119723 Motion No. M-85320 Cross-Motion No. CM-85477
12-21-2015
MARY JEAN WOLFE and THOMAS WOLFE v. THE NEW YORK STATE THRUWAY AUTHORITY
SUGARMAN LAW FIRM, LLP BY: Robert P. Dwyer, Esq., Of Counsel. HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York BY: Patricia M. Bordonaro, Esq., Assistant Attorney General, Of Counsel.
Synopsis
Defendant's motion to dismiss this claim was granted based upon claimants' failure to serve the claim upon the New York State Thruway Authority.
Case information
| UID: | 2015-009-036 |
| Claimant(s): | MARY JEAN WOLFE and THOMAS WOLFE |
| Claimant short name: | WOLFE |
| Footnote (claimant name) : | |
| Defendant(s): | THE NEW YORK STATE THRUWAY AUTHORITY |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 119723 |
| Motion number(s): | M-85320 |
| Cross-motion number(s): | CM-85477 |
| Judge: | NICHOLAS V. MIDEY JR. |
| Claimant's attorney: | SUGARMAN LAW FIRM, LLP BY: Robert P. Dwyer, Esq., Of Counsel. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York BY: Patricia M. Bordonaro, Esq., Assistant Attorney General, Of Counsel. |
| Third-party defendant's attorney: | |
| Signature date: | December 21, 2015 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant has brought a motion (M-85320) seeking an order dismissing the claim based upon a failure of the claimants to serve the claim upon the defendant New York State Thruway Authority. Claimants have responded with a cross motion (CM-85477), not only in opposition to defendant's motion to dismiss, but also for an order deeming the copy of the claim served with claimants' prior late claim application as timely served upon the Thruway Authority. In the alternative, claimants also request an order vacating this Court's prior Decision and Order filed on April 4, 2011, which granted claimants' late claim application, and to the extent which required claimants to serve the New York State Thruway Authority with a copy of their claim.
The following papers were considered by the Court in connection with these motions:
Motion to Dismiss; Attorney's Affirmation; Affidavit of Marcy Dikeman,
with Exhibits 1-3
Notice of Cross Motion; Attorney Affirmation, with Exhibits 4, 5
Attorney's Affirmation in Reply 6
Supplemental Attorney Affirmation 7
A brief recap of this claim is instrumental in determining both the motion and cross motion. Claimant, Mary Jean Wolfe, was injured on June 22, 2008, when she was crossing a pedestrian bridge over the Cayuga Seneca Lock 1. A claim was then served and filed on behalf of claimants against the State of New York on or about September 19, 2008. Approximately two years later, during a telephone conference with Chambers, claimants' attorney was informed by Assistant Attorney General Bordonaro that the property where Mrs. Wolfe was injured was in fact owned by the New York State Thruway Authority, and not the State of New York. As a result, shortly thereafter claimants' attorney moved for permission to serve and file a late claim against the Thruway Authority, and also requested that the proposed claim served with the motion papers be deemed timely served upon the Thruway Authority nunc pro tunc.
In a Decision and Order filed on April 4, 2011, this Court granted claimants' application for permission to serve and file a late claim against the Thruway Authority. The Decision and Order also directed claimants "to file and serve their proposed claim, properly verified, within 45 days from the date of filing of this decision and order in the Clerk's Office, with such service and filing to be in accordance with the Court of Claims Act, with particular references to Sections 10, 11 and 11-a, and the Uniform Rules for the Court of Claims. Claimants' attention is directed to 11 (a) (ii) of the Court of Claims Act, pertaining to claims brought against, among others, the Thruway Authority." (See Exhibit 2 to Items 4 and 5).
Claimants admittedly served their claim upon the Attorney General on April 8, 2011, but never served the claim upon the Thruway Authority as required by Court of Claims Act § 11 (a)(ii). In its Answer, the Thruway Authority asserted as its first Affirmative Defense that: "[t]he Claim must be dismissed for lack of personal jurisdiction over the Defendant New York State Thruway Authority inasmuch as the Thruway Authority was not served with a copy of the Claim. Service on the New York State Attorney General is not sufficient to confer jurisdiction over the New York State Thruway Authority."
Discovery Demands were also served by the defendant upon the claimants with its Answer, and discovery proceeded between the parties. Amended orders were issued by this Court extending the dates for completion of disclosure and service and filing of a Note of Issue, until such time when the instant motion was served upon the claimants' attorney on or about June 30, 2014. The motion was then adjourned on several occasions at the request of claimants' attorney.
Pursuant to Section 11 (c) of the Court of Claims Act, any objection or defense which is based upon the failure to comply with the service requirements of Section 11 (a) must be "raised, with particularity, either by a motion to dismiss made before service of the responsive pleading is required or in the responsive pleading." If the objection or defense is not so raised, it is waived.
As indicated above, the defendant raised the fact that claimants had failed to serve the Thruway Authority as an Affirmative Defense in its Verified Answer, and the Court finds that it was raised with sufficient particularity so that it was not waived by the defendant.
It has long been held that the filing and service requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]). Since it is readily apparent that claimants failed to serve the defendant Thruway Authority, claimants have failed to acquire jurisdiction over the Thruway Authority and the claim is subject to dismissal.
Claimants have requested that this Court deem the claim as being served by reason of the service of the proposed claim with its application seeking permission to file and serve a late claim, or, in the alternative, that the Court vacate its order granting late claim relief to the extent which required service of the claim upon the New York State Thruway Authority.
However, is has long been held that this Court does not have the authority to waive jurisdictional defects, nor deem them satisfied by other means, such as nunc pro tunc relief (Bonaventure v New York State Thruway Auth., 108 AD2d 1002 [3d Dept 1985]; Cantor v State of New York, 43 AD2d 872 [3d Dept 1974]). The law is well-settled that the Thruway Authority is an autonomous public corporation, separate and distinct from the State, and that service is required upon that authority in addition to service upon the Attorney General (Bonaventure, supra), and therefore service upon the Attorney General does not equate to service upon the Thruway Authority. Although claimants have also requested that the State be equitably estopped from asserting its jurisdictional defense, the Court finds that this argument is without merit, especially considering that claimants were specifically notified of the requirement that the New York State Thruway Authority had to be served pursuant to Court of Claims Act § 11 (a) (ii) in this Court's Decision and Order granting claimants' application for late claim relief.
Based on the foregoing, therefore, it is
ORDERED, that motion No. M-85320 is hereby GRANTED; and it is further
ORDERED, that cross motion No. CM-85477 is hereby DENIED; and it is further
ORDERED, that claim No. 119723 is hereby DISMISSED.
December 21, 2015
Syracuse, New York
NICHOLAS V. MIDEY JR.
Judge of the Court of Claims