Opinion
# 2015-016-007 Claim No. 124336 Motion No. M-85902
03-04-2015
MARIA SMITH v. THE STATE OF NEW YORK AND SUNY DOWNSTATE MEDICAL CENTER
Joseph Russo, Esq. Eric T. Schneiderman, Attorney General By: Suzette Corinne Rivera, AAG
Synopsis
Case information
| UID: | 2015-016-007 |
| Claimant(s): | MARIA SMITH |
| Claimant short name: | SMITH |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK AND SUNY DOWNSTATE MEDICAL CENTER |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124336 |
| Motion number(s): | M-85902 |
| Cross-motion number(s): | |
| Judge: | Alan C. Marin |
| Claimant's attorney: | Joseph Russo, Esq. |
| Defendant's attorney: | Eric T. Schneiderman, Attorney General By: Suzette Corinne Rivera, AAG |
| Third-party defendant's attorney: | |
| Signature date: | March 4, 2015 |
| City: | New York |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The defendant State of New York has moved to dismiss the claim of Maria Smith, which arises from her slip and fall on a large sheet of ice or black ice on the steps abutting the main entrance to the State University's Downstate Medical Center at 450 Clarkson Avenue in Brooklyn.
The defendant argues that Ms. Smith's claim was not served on it within 90 days and that such service was by regular mail, not by certified mail, return receipt requested (or personally) as required by sections 10 (3) and 11 (a) of the Court of Claims Act.
The accident occurred on February 12, 2014. Receipt was acknowledged by the Acting Chief Clerk of the Court of Claims on May 9, 2014; however it was not served on the Attorney General until October 14, 2014. [Defendant's affirmation in support, exhibit A].
The Court of Appeals has held that the "statutory requirements conditioning suit [in the Court of Claims] must be strictly construed." (Long v State of New York, 7 NY3d 269, 276 [2006]). In Dreger v New York State Thruway Auth., 81 NY2d 721 (1992), the Court of Appeals upheld the dismissal of two cases from the Court of Claims because service was accomplished by regular mail. See Zagarella v State of New York, 149 AD2d 503 (2d Dept 1989) on the failure to adhere to the 90-day time period.
In Filozof v State of New York, 45 AD3d 1405 (2007), the Fourth Department reversed the Court of Claims judge and dismissed Mr. Filozof's claim which was served by registered mail, return receipt requested.
In view of the foregoing, and having reviewed the submissions of the parties, IT IS ORDERED that claim no. 124336 be dismissed. It should, however, be noted that section 10 (6) of the Act provides a vehicle for seeking permission to file a late claim, which Ms. Smith may seek to avail herself of.
The following were reviewed: defendant's Notice of Motion and Affidavit in Support together with exhibit A; and claimant's Affirmation in Opposition together with two unnumbered/unlettered attachments.
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March 4, 2015
New York, New York
Alan C. Marin
Judge of the Court of Claims