Opinion
No. 120307.
11-17-2016
Roslyn HENRY, Claimant, v. STATE of New York, Defendant.
Levine and Wiss, PLLC by Anthony A. Ferrante, Esq., for claimant. Eric T. Schneiderman, Attorney General by Nicole M. Procida, AAG, for defendant.
Levine and Wiss, PLLC by Anthony A. Ferrante, Esq., for claimant.
Eric T. Schneiderman, Attorney General by Nicole M. Procida, AAG, for defendant.
ALAN C. MARIN, J.
The defendant State of New York moves here to dismiss the claim of Roslyn Henry, who on September 21, 2010 tripped and fell while exiting a bus near the visitors parking lot at Montefiore Hospital (North) in Bronx County.
Ms. Henry states that she fell "due to ... a steel post/pole protruding approximately 8? in height and 4? in width from the sidewalk and/or walkway thereat." According to claimant, this was the remainder of a metal post supporting a sign directing traffic for the southbound Bronx River Parkway that was negligently removed by the State Department of Transportation. (Paragraph 3 of the claim is exhibit A of defendant's Affirmation in Support).
Defendant argues that claimant has failed to comply with the filing requirement of the Court of Claims (the "Act"). Section 10(3) of the Act provides that a claim be filed with the Court and served on the Attorney General within 90 days of when the cause of action accrued.
Defendant does not challenge the timeliness of the service on the Attorney General, but does for the filing with the Court. Ms. Henry's claim was not filed with the Court until September 6, 2011, almost a year after accrual (id., exh D). Earlier that year, on February 11, 2011, the Clerk of the Court of Claims sent a letter to the parties, stating that Roslyn Henry's claim had not been filed with the Court (id., exhibit C).
The Court of Appeals has held that "Because 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 N.Y.2d 721, 724 [1992] ). In Dreger, the Court of Appeals upheld the dismissal of two suits in the Court of Claims because the method of service was regular mail. Failure to file with the Court and serve on the Attorney General are also jurisdictional defects warranting dismissal of the claim (Ivy v. State of New York, 27 AD3d 1190 [4th Dept 2006] ; Davis v. State of New York, 89 AD3d 1287 [3d Dept 2011] ).
Such strict construction is qualified by a provision of the Act which requires that any defense based upon a failure to comply with its time or service requirements is "waived unless raised, with particularity, either by a motion to dismiss made before service of the responsible pleading is required or in the responsible pleading, and if so waived the court shall not dismiss the claim for such failure" (subdivision [c] of section 11).
This would avoid the situation that occurred in Chapman v. State of New York, 261 A.D.2d 814 (3d Dept 1999) : after both sides rested at trial, the claim was dismissed for failure to satisfy the timeliness provisions of section 10(3) of the Act. The State had answered Arnold Chapman's claim in February of 1989 without raising such as an affirmative defense; the Third Department would not apply retroactively the 1990 amendment that added subdivision (c) to section 11.
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The fifth affirmative defense interposed by defendant to Roslyn Henry's claim was as follows: "The Court lacks jurisdiction over the claim due to claimant's failure to file the claim with the Court of Claims, in accordance with Court of Claims Act sections 10 and 11" (id., exhibit B).
In the pleadings and related papers submitted through 2011, the caption provides that the suit was being brought against the State of New York and the New York State Department of Transportation. With the subject motion, the parties began using a caption containing only the "State of New York" as the defendant; accordingly, the caption is so amended herein.
Such includes the Claim; Answer; defendant's Combined Demand; Verified Bill of Particulars; claimant's Notice for Discovery and Inspection, Demand for a Verified Bill of Particulars for Affirmative Defenses, Notice of Physical Examination and Notice to Take Deposition Upon Oral Examination (as well as a notice to admit with the response thereto and defendant's request for medicare information).
The defendant in the third affirmative defense in its answer stated that this Court does not have jurisdiction over the "New York State Department of Transportation" (id. ). Claimant relies thereon to assert that "[inasmuch] as the New York State Department of Transportation was only one of two named entities, it is submitted that defendant State of New York has not preserved this affirmative defense and has thus waived it with respect to the State of New York" (Affirmation in Opposition, paragraph 6).
Acts or omissions of an agency of the State of New York are imputed to the State. Claimants may, on occasion, name the State and the particular agency, but ultimately, the proper caption would have the State of New York as the sole defendant (Foley v. State of New York, 52 Misc.3d 1218 [A) ], note 1). If service and filling is properly and timely made upon the Attorney General and with the Clerk of the Court in Albany, the suit can proceed.
On this issue, the senior colleges thereof bear the same relation to the City University of New York as do individual State agencies to the State of New York (Singh v. City University of New York, 50 Misc.3d 1220[A] [Ct Cl 2015] ).
No precedent obtains for what claimant argues; the defendant properly interposed an affirmative defense based upon the failure to timely file the claim with Clerk of the Court.
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In view of the foregoing, and having reviewed what was submitted, IT IS ORDERED that defendant's motion No. M–88187 is granted, and claim No.120307 is dismissed.
The following were reviewed: From defendant, a Notice of Motion dated March 3, 2016, a Notice of Motion dated March 24, 2016, an Affidavit of Attorney Procida Re: Notice of Motion, and an Affirmation in Support of Defendant's Motion to Dismiss (with exhibits A through E); from claimant: an Affirmation in Opposition.
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