Opinion
14232 Claim No. 130113 Case No. 2019–3670
09-28-2021
Mark RODRIGUEZ, Claimant–Appellant, v. STATE of New York, Defendant–Respondent.
Mark Rodriguez, appellant pro se. Letitia James, Attorney General, New York (Mark S. Grube of counsel), for respondent.
Mark Rodriguez, appellant pro se.
Letitia James, Attorney General, New York (Mark S. Grube of counsel), for respondent.
Acosta, P.J., Singh, Kennedy, Mendez, Higgitt, JJ.
Order of the Court of Claims of the State of New York (Jeanette Rodriguez–Morick, J.), entered March 14, 2019, which, in effect, granted claimant's motion to reargue defendant's motion to dismiss and, upon reargument, adhered to the prior determination, unanimously affirmed, without costs.
Although the motion court purported to deny claimant's motion for reargument, it effectively granted the motion by addressing the merits. Accordingly, the order is appealable ( CPLR 5701[a][2][viii] ; Castillo v. Mount Sinai Hosp., 140 A.D.3d 619, 620, 33 N.Y.S.3d 269 [1st Dept. 2016], lv denied 28 N.Y.3d 913, 2017 WL 524659 [2017] ).
The Court of Claims correctly dismissed the claim based on its untimeliness ( Watson v. State of New York, 147 A.D.3d 708, 708, 47 N.Y.S.3d 707 [1st Dept. 2017], appeal dismissed, lv. denied 29 N.Y.3d 1114, 61 N.Y.S.3d 202, 83 N.E.3d 212 [2017] ; Court of Claims Act § 10[3–b] ). Contrary to claimant's contention, his cause of action for fraud accrued no later than October 6, 2016, when he "possessed knowledge of facts from which the fraud could reasonably have been inferred" ( Town of Poughkeepsie v. Espie, 41 A.D.3d 701, 705, 840 N.Y.S.2d 600 [2d Dept. 2007] [internal quotation marks omitted], lv dismissed 9 N.Y.3d 1003, 849 N.Y.S.2d 30, 879 N.E.2d 170 [2007], lv denied 15 N.Y.3d 715, 2010 WL 5071209 [2010] ; see CPLR 213[8] ). Claimant served the claim on August 7, 2017 and filed it with the court on August 14, 2017, well beyond the 90–day period provided by statute ( Court of Claims Act § 10[3–b] ). It is also undisputed that claimant did not serve a notice of intention to file a claim on the Attorney General within the 90–day period and that he did not move for leave to file a late claim ( Court of Claims Act § 10[3–b], [6] ). "Notwithstanding claimant's pro se status, strict construction of and compliance with [the] statutory preconditions to suit under the Court of Claims Act is required" ( Watson, 147 A.D.3d at 708, 47 N.Y.S.3d 707 ; see Court of Claims Act § 8 ; Kolnacki v. State of New York, 8 N.Y.3d 277, 281, 832 N.Y.S.2d 481, 864 N.E.2d 611 [2007] ).
To the extent that claimant's motion to reargue may be construed as a motion for leave to file a late claim, the Court of Claims providently declined to grant leave, as the fraud cause of action is not meritorious (see Court of Claims Act § 10[6] ; Sands v. State of New York, 49 A.D.3d 444, 444, 853 N.Y.S.2d 555 [1st Dept. 2008] ). The claim failed to plead elements of fraud in detail, since claimant failed to allege, among other things, specific misrepresentations made to him or his reliance on any such misrepresentations (see Pope v. Saget, 29 A.D.3d 437, 441, 817 N.Y.S.2d 1 [1st Dept. 2006] ).
We have considered claimant's remaining contentions and find them unavailing.