Opinion
# 2015-015-074 Claim No. 124392 Motion No. M-86705 Cross-Motion No. CM-86819
08-24-2015
HAMILTON LIVERY LEASING LLC v. THE STATE OF NEW YORK
Albert S. Antar, Esquire Honorable Eric T. Schneiderman, Attorney General By: Michael T. Krenrich, Esquire Assistant Attorney General
Synopsis
The claim filed on behalf of a limited liability company by one of its members who was not an attorney was a nullity. As a result, the amended claim was dismissed as untimely.
Case information
| UID: | 2015-015-074 |
| Claimant(s): | HAMILTON LIVERY LEASING LLC |
| Claimant short name: | HAMILTON LIVERY |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124392 |
| Motion number(s): | M-86705 |
| Cross-motion number(s): | CM-86819 |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Albert S. Antar, Esquire |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: Michael T. Krenrich, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | August 24, 2015 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, Hamilton Livery Leasing, LLC (Hamilton), moves to amend its claim to add a cause of action seeking a writ of mandamus. Defendant cross-moves to dismiss the claim pursuant to CPLR 3211 (a) (2), (7) and (8) and CPLR 321 (a).
The initial claim was filed on behalf of Hamilton, a limited liability company, by David Lerner, a member thereof. The initial claim, filed on May 20, 2014, alleges a negligence cause of action arising from the Department of Motor Vehicles' (DMV) erroneous issuance of a motor vehicle title to Henriques Ramon (Ramon), who was merely the lessee and registrant of the vehicle, not its owner. This negligence, it is alleged, resulted in the ability of Ramon to perpetrate a fraud by selling the vehicle to a third party. Hamilton seeks damages for both the value of the vehicle and loss of income as the result of the error.
Subsequent to the filing and service of the initial claim, counsel acting on behalf of Hamilton filed and served an amended claim, together with a notice of appearance. The amended claim was filed on June 26, 2014 and received in the Office of the Attorney General on June 30, 2014. Hamilton alleges in both the claim and amended claim that it became aware that DMV may have made a mistake on or about February 20, 2014.
Defendant contends in support of its cross motion that the initial claim filed on behalf of Hamilton by an individual who is not an attorney is a nullity and the amended claim was not timely filed and served. Inasmuch as the cross motion is dispositive, it will be addressed first.
CPLR 321 (a) prohibits a corporation or voluntary association from appearing in a civil action without an attorney. The Court of Appeals has therefore observed that "[w]hen the party to an action is a fictional person- a legal entity with limited liability- the general rule is that it cannot represent itself but must be represented by a licensed practitioner, whether outside counsel or staff counsel, answerable to the court and other parties for his or her own conduct in the matter" (Matter of Sharon B., 72 NY2d 394, 398 [1988]). A limited liability company is a fictional "person" (Limited Liability Company Law § 102 [w]) and is defined as "an unincorporated organization of one or more persons having limited liability for the contractual obligations and other liabilities of the business . . . other than a partnership or trust, formed and existing under this chapter and the laws of this state" (Limited Liability Company § 102 [m]). Thus, similar to a corporation, a limited liability company "is created to shield its members from liability and once formed is a legal entity distinct from its members" (Michael Reilly Design, Inc. v Houraney, 40 AD3d 592 [2d Dept 2007]). As a result, "the [limited liability company] may only be represented by an attorney and not by one of its members who is not an attorney admitted to practice in the state of New York (id. at 593-594; People v Highgate LTC Mgt., LLC, 69 AD3d 185 [3d Dept 2009]; see generally Montauk Friends of Olmsted Parks v Brooklyn Historical Socy., 95 NY2d 821 [2000]; Hilton Apothecary v State of New York, 89 NY2d 1024 [1997]; Matter of Tenants Comm. of 36 Gramercy Park v New York State Div. of Hous. & Community Renewal, 108 AD3d 413 [1st Dept 2013], appeal dismissed 108 AD3d 413 [1st Dept 2013], lv dismissed 22 NY3d 990 [2013]; Schaal v CGU Ins., 96 AD3d 1182, n 2 [3d Dept 2012]; Moran v Hurst, 32 AD3d 909, 910 [2d Dept 2006]; Ficalora v Town Bd. Govt. of E. Hampton, 276 AD2d 666 [2d Dept 2000], appeal dismissed 96 NY2d 813 [2001], recon denied 96 NY2d 897 [2001]; Ernest & Maryanna Jeremias Family Partnership, L.P. v Sadykov, 48 Misc 3d 8 [App Term, 2d Dept 2015]; Moodie v State of New York, UID No. 2012-015-370 [Ct Cl, Collins, J. Oct. 9, 2012]). The initial claim in the instant action filed on behalf of Hamilton by one of its members who is not an attorney is therefore a nullity and must be dismissed.
Since the initial claim is a nullity, the amended claim, which was filed and served by counsel on Hamilton's behalf, was untimely. Court of Claims Act § 10 (3) requires that a claim or notice of intention alleging an intentional tort must be filed and served within 90 days after the claim accrued. The law is settled that "[f]ailure to comply with the statutory filing and service requirements deprives the Court of Claims of subject matter jurisdiction and compels dismissal of the claim" (Maude V. v New York State Off. of Children & Family Servs., 82 AD3d 1468, 1469 [3d Dept 2011]; see also; Miranda v State of New York, 113 AD3d 943 [3d Dept 2014]; Caci v State of New York, 107 AD3d 1121 [3d Dept 2013]; Encarnacion v State of New York, 112 AD3d 1003 [3d Dept 2013]). "Both filing with the court and service upon the Attorney General must take place within the relevant statutory period" (citing Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]). Here, neither service nor filing of the amended claim occurred within 90 days of the date the claim accrued as required by Court of Claims Act § 10 (3) and the initial claim is a nullity. While the untimely service or filing of the claim is a waivable defect (Court of Claims Act § 11 [c]), defendant preserved its objection by timely asserting the defense as an affirmative defense in its answer (defendant's Exhibit D, First Defense). As a result, dismissal of the amended claim is required.
While this decision renders Hamilton's motion academic, it should be noted that the proposed additional cause of action seeks strictly equitable relief as to which this Court lacks jurisdiction (see e.g. Madura v State of New York, 12 AD3d 759 [3d Dept 2004]).
Based on the foregoing, defendant's cross motion to dismiss the claim is granted and the claim is dismissed. Claimant's motion to amend the claim is denied as academic.
August 24, 2015
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims The Court considered the following papers: Notice of motion dated May 4, 201[5]; Affirmation of Albert S. Antar dated May 4, 201[5] with exhibits A-D; Notice of cross motion dated June 10, 2015; Affirmation of Michael T. Krenrich dated June 10, 2015 with exhibits A-E; Affirmation of Albert S. Antar dated June 23, 2015 with exhibits A-B; Affidavit of David Lerner sworn to June 24, 2015.