Opinion
# 2019-045-046 Claim No. 132588 Motion No. M-93543 Motion No. M-93545
12-20-2019
JOAN MENNA v. THE STATE OF NEW YORK, THE GOVERNOR'S OFFICE OF STORM RECOVERY, THE HOUSING TRUST FUND CORPORATION, STARR INDEMNITY & LIABILITY CO.
Joan Menna, Pro Se The State of New York Hon. Letitia James, Attorney General By: Robert E. Morelli, Assistant Attorney General The Governor's Office of Storm Recovery, the Housing Trust Fund Corporation, Starr Indemnity & Liability Co. Kennedys CMK, LLP By: Michael R. Schneider, Esq.
Synopsis
Defendant's motion to dismiss the claim brought against the New York State Housing Trust Fund Corporation and New York Rising. Claim concerned reimbursement amounts for damages due to storms. Claim dismissed, no jurisdiction over public benefits corporation, improper service by priority mail and essentially a review of adverse administrative decision, Article 78.
Case information
| UID: | 2019-045-046 |
| Claimant(s): | JOAN MENNA |
| Claimant short name: | MENNA |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK, THE GOVERNOR'S OFFICE OF STORM RECOVERY, THE HOUSING TRUST FUND CORPORATION, STARR INDEMNITY & LIABILITY CO. |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 132588 |
| Motion number(s): | M-93543, M-93545 |
| Cross-motion number(s): | |
| Judge: | Gina M. Lopez-Summa |
| Claimant's attorney: | Joan Menna, Pro Se |
| Defendant's attorney: | The State of New York Hon. Letitia James, Attorney General By: Robert E. Morelli, Assistant Attorney General The Governor's Office of Storm Recovery, the Housing Trust Fund Corporation, Starr Indemnity & Liability Co. Kennedys CMK, LLP By: Michael R. Schneider, Esq. |
| Third-party defendant's attorney: | |
| Signature date: | December 20, 2019 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read and considered by the Court on these motions: The State of New York's Notice of Motion; The State of New York's Affirmation in Support with annexed Exhibits A-C; The Housing Trust Fund Corporation and Starr Indemnity & Liability Co's. Notice of Motion; The Housing Trust Fund Corporation and Starr Indemnity & Liability Co's. Affirmation in Support; The Governor's Office of Storm Recovery, The Housing Trust Fund Corporation and Starr Indemnity & Liability Co's. Notice of Motion; The Governor's Office of Storm Recovery, The Housing Trust Fund Corporation and Starr Indemnity & Liability Co's. Affirmation in Support; Claimant's Opposition with annexed Exhibits A-Z and AA; The State of New York's Affirmation in Further Support with annexed Exhibit A; and The Governor's Office of Storm Recovery, The Housing Trust Fund Corporation and Starr Indemnity & Liability Co's. Affirmation in Further Support.
Improperly titled Notice of Motion to Dismiss Claim.
Improperly titled Amended Notice of Motion to Dismiss Claim.
The State of New York, joined by the Governor's Office of Storm Recovery (GOSR), the Housing Trust Fund Corporation (HTFC) and Starr Indemnity & Liability Co. (Starr), have brought these motions which contain ostensibly identical arguments for dismissal of the claim pursuant to CPLR 3211 (a) (2), (7) and (8) and Court of Claims Act §§ 8, 9, 10 and 11. Claimant, Joan Menna, opposes the motions.
On November 21, 2017, claimant served a notice of intention to file a claim on the Office of the New York State Attorney General as well as GOSR and HTFC. Claimant served a notice of intention to file a claim on Starr on November 22, 2017.
On January 31, 2019, claimant served the claim on the Office of the New York State Attorney General by certified mail, return receipt requested.
Claimant alleged in her claim that she was the owner of two contiguous parcels of real property (Lot 23 and Lot 24) known collectively as 16 South Breeze Drive, Patchogue, New York. Lot 23 was an unimproved parcel of vacant land with a southerly border which abutted the Great South Bay. Lot 23 had a timber bulkhead system with timber fender piles driven down into the ground every 6 feet along the southerly boundary line. Lot 24 was improved with a single family dwelling. In October 2012, Superstorm Sandy, struck Long Island causing significant damage to the single family dwelling as well as the bulkhead. In 2015, claimant entered into a contract to sell 16 South Breeze to New York Rising Buyout and Acquisition Program (NYRBAP). Through NYRBAP, 16 South Breeze was transferred by claimant to the HTFC. At the time of the transfer, HTFC was aware of the damage to the bulkhead located at 16 South Breeze. At the time of the closing between claimant and HTFC, representatives of HTFC made verbal assurances to claimant that she would be contacted regarding coordination of repairs to the bulkhead at 16 South Breeze and Lot 23. However, there were no repairs made to the bulkhead at 16 South Breeze between July 7, 2016 and October 29, 2017 despite repeated request made by claimant to HTFC and GOSR. The bulkhead at 16 South Breeze deteriorated which eventually led to significant soil erosion landward of the bulkhead of 16 South Breeze and Lot 23. After October 31, 2017, claimant made repeated demands to HTFC and GOSR to repair the bulkhead at 16 South Breeze in order to mitigate the ongoing damage to claimant's property and the surrounding environment. The seawater breaches the bulkhead and flows onto the properties causing, inter alia, more erosion as well as depositing debris onto Lot 23.
Claimant puts forth three causes of action against defendants in the claim. Claimant initially seeks declaratory judgments against defendants stating that the defendants are responsible for the erosion and damage to the bulkhead at Lot 23, that the defendants have the responsibility to repair the bulkhead at 16 South Breeze and that defendants are obligated to immediately undertake any necessary remedial measures to mitigate the damage done to the bulkhead and surrounding property at Lot 23.
Claimant next asserts that by allowing the bulkhead at 16 South Breeze to remain in its dilapidated condition, defendants have created a private nuisance which materially impaired claimant's use and enjoyment of Lot 23 as well as negatively effecting the value of Lot 23.
Lastly, claimant brings forth a claim for restitution and unjust enrichment by arguing that defendants were unjustly enriched by claimant's performance of her duties.
Defendants seeks dismissal of the claim arguing that the Court lacks jurisdiction because the real parties in interest are not agencies of the State of New York and are not subject to jurisdiction in the Court of Claims.
The HTFC is a public benefits corporation created by statute (see 9 NYCRR § 1900.2) and the Governor's Office of Storm Recovery is a subsidiary of that entity. The statute is silent with regard to the jurisdiction of the Court of Claims over the HTFC. However, "[w]here the State Legislature has decided to confer on the Court of Claims jurisdiction over public authorities, it has done so specifically by statute; the absence of such a provision in the enabling legislation indicates that jurisdiction lies with courts of general jurisdiction" (Gembala v Audobon Assn., 97 AD2d 345 [3d Dept 1983]; see Plath v New York State Olympic Regional Dev. Auth., 304 AD2d 885 [3d Dept 2003]). Thus, the Court of Claims, a court of limited jurisdiction wherein claims are primarily brought against the State of New York and certain public authorities, does not have jurisdiction to hear claims brought against HTFC or its subsidiary, the Governor's Office of Storm Recovery (id.; Boland v State of New York, UID 2018-050-063 [Ct Cl, Lynch, S., November 28, 2018]; Wendel v NYS Housing Trust Fund Corp., UID 2015-040-020 [Ct Cl, McCarthy, J., April 27, 2015]; ProSource Tech., LLC v Housing Trust Fund Corp., 49 Misc3d 1205(A) [Sup Ct, Albany County 2015]; see also CCA § 9).
The Court of Claims could have jurisdiction over Starr but only in the context of a declaratory judgment brought by the State or another proper defendant as to Starr's obligation to indemnify or defend that defendant, something which is not implicated under the facts of this case (see Court of Claims Act § 9 [9-a]).
Thus, to the extent claimant is attempting to bring claims against HTFC, GOSR and Starr, they are dismissed as the Court of Claims does not have jurisdiction over those entities in this matter.
Claimant's remaining allegations against the State of New York rest on the wrongful presumption that HTFC and GOSR are subject to the jurisdiction of the Court of Claims. Claimant only raises acts or omissions against entities over which this Court lacks jurisdiction. Additionally, HTFC, rather than the State, currently owns Lot 24. Thus, the claims for private nuisance and unjust enrichment arise against HTFC and not the State of New York. Therefore, the claim must be dismissed in its entirety.
Defendant also seeks dismissal of the claim against the State of New York arguing that the Court lacks jurisdiction because the notice of intention was improperly served by priority mail as opposed to one of the methods authorized by Court of Claims Act § 11 (a). In support, defendant submitted the priority mail express envelope in which it received claimant's notice of intention to file a claim.
The Court's use of the term defendant singularly refers only to the State of New York.
Court of Claims Act § 11 (a) provides that a copy of the notice of intention ". . . shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for filing with the clerk of the court . . . ." The filing and service requirements contained in the Court of Claims Act § 11 are jurisdictional in nature and, therefore, must be strictly construed (Finnerty v New York State Thruway Authority, 75 NY2d 721 [1989]). Claimant concedes that the notice of intention was served by priority express overnight mail. Claimant's "substituted manner of service - priority mail- did not strictly comply with the statutory requirements" (Miranda v State of New York, 113 AD3d 943 [3d Dept 2014]; Young v State of New York, 138 AD3d 1357 [3d Dept 2016]; Martinez v State of New York, 282 AD2d 580 [2d Dept 2001]). Thus, the requirement that defendant be served in accordance with Court of Claims Act § 11 was not met as the notice of intention was served by priority mail.
Additionally, defendant contends that the Court lacks jurisdiction because the notice of intention is jurisdictionally deficient since it does not state the date the action accrued. Defendant states that the notice of intention also fails to describe any actions or inactions by the State itself; nor does it describe the alleged acts of negligence by the HTFC that gave rise to the claim. Defendant again asserts that since the notice of intention was defective it did not preserve claimant's time to file the claim.
Court of Claims Act § 11 (b) requires that:
"[t]he claim shall state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and, except in an action to recover damages for personal injury, medical, dental or podiatric malpractice or wrongful death, the total sum claimed....The notice of intention to file a claim shall set forth the same matters except that the items of damage or injuries and the sum claimed need not be stated."
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]; see also Finnerty v New York State Thruway Authority, 75 NY2d 721 [1989]). A notice of intention which fails to specify a date of accrual runs afoul of the jurisdictional requirement of Court of Claims Act § 11 (b) and thus cannot serve to extend the time requirements of Court of Claims Act § 10 (Lepkowski v State of New York, 1 NY3d 201 [2003]; Matter of DeMairo v State of New York, 172 AD3d 856 [2d Dept 2019]; Hargrove v State of New York, 138 AD3d 777 [2d Dept 2016]; Weaver v State of New York, 82 AD3d 878 [2d Dept 2011]).
The notice of intention failed to comply with the jurisdictional requirements of the Court of Claims Act since it was served by an unauthorized method of service and did not state an accrual date (id.). As a result, claimant's time period to serve and file the claim in this matter was not extended by her service of the notice of intention.
Claimant sets forth October 31, 2017 as the accrual date of her claim since that is when a severe windstorm caused significant damage to the bulkhead at 16 South Breeze which in turn caused damage to Lot 23. The claim was served and filed on January 31, 2019; well outside the time limitations set forth in either Court of Claims Act § 10 (3) or (4). Consequently, the Court is constrained to dismiss the claim in its entirety on this ground (id.).
Therefore, for the foregoing reasons, defendants motions are granted and the claim is dismissed.
December 20, 2019
Hauppauge, New York
Gina M. Lopez-Summa
Judge of the Court of Claims