Opinion
# 2012-040-069 Claim No. 118689 Motion No. M-81577 Cross-Motion No. CM-81656
08-15-2012
DAVID D. ZOECKLER, SR., and DIANA ZOECKLER v. STATE OF NEW YORK
Synopsis
State's motion to dismiss Claim as untimely filed and served within time specified by Court in Decision & Order granting late claim motion granted and Claim dismissed. Case information
UID: 2012-040-069 DAVID D. ZOECKLER, SR., and Claimant(s): DIANA ZOECKLER Claimant short name: ZOECKLER Footnote (claimant name) : Defendant(s): STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 118689 Motion number(s): M-81577 Cross-motion number(s): CM-81656 Judge: CHRISTOPHER J. McCARTHY PETRONE & PETRONE, P.C. Claimant's attorney: By: Janet F. Neumann, Esq. ERIC T. SCHNEIDERMAN Defendant's attorney: Attorney General of the State of New York By: Thomas M. Trace, Senior Attorney Third-party defendant's attorney: Signature date: August 15, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
For the reasons set forth below, Defendant's motion to dismiss the Claim pursuant to CPLR 3211(a)(2) and (8) on the basis that the Court lacks both subject matter jurisdiction over the Claim and personal jurisdiction over the Defendant is granted. Claimants' cross-motion to permit the asserted defect of improper service to be corrected or disregarded as a technical error is denied.
The Claim, which was filed in the office of the Clerk of the Court on July 26, 2010, involves an accident that occurred on May 14, 2009 at approximately 10:30 a.m. on State Route 5B (Limberlost Road) in the Town of Kirkland, Oneida County, New York, when a tree fell on a vehicle being operated by Claimant, David D. Zoeckler, Sr.
A motion for permission to file a late claim was granted by the Honorable Norman I. Siegel in a Decision and Order dated June 10, 2010 and filed with the Clerk of the Court on June 16, 2010 (Zoeckler v State of New York, UID No. 2010-042-511 [Ct Cl]). In the final paragraph of the decision, Judge Siegel directed the Zoecklers to serve and file a claim in accordance with Court of Claims Act §§ 11 and 11-a within 60 days of the filing date of the Decision and Order.
As stated above, the Claim was filed on July 26, 2010 and was subsequently served on the Attorney General's office on August 10, 2010 by regular mail. In reviewing Exhibit C, which is a photocopy of the envelope in which the Claim was purportedly mailed, the Court notes that the postage amounted to $1.05 and that there is no certified mail or return receipt sticker affixed to the envelope. A copy of the Claim is attached to Defendant's motion as Exhibit B.
Defendant served and filed an Answer on September 13, 2010 (Attached to Motion as Ex. D). It raises, as its Fifth Affirmative Defense, that the Court lacks personal jurisdiction over the Defendant, State of New York, and subject matter jurisdiction of the Claim as the Claim was served by regular mail and not by certified mail, return receipt requested, or personally, as required by Court of Claims Act § 11.
An identical copy of the Claim again was served on the Attorney General's office on November 26, 2010 by certified mail, return receipt requested (see Exs. E and F attached to Motion).
In his Decision and Order, Judge Siegel specifically directed Claimants to serve and file their Claim in accordance with Court of Claims Act §§ 11 and 11-a within 60 days of the date of the filing of that Decision and Order, or, in other words, by Monday, August 16, 2010.
Court of Claims Act § 11(a)(i) provides that the Claim shall be filed with the Clerk of the Court and that a copy shall be served upon the Attorney General within the time period provided in Section 10 of the Court of Claims Act, either personally or by certified mail, return receipt requested. The statute further provides that service by certified mail, return receipt requested, is not complete until the Claim or Notice of Intention to File a Claim is received by the Attorney General. It is well established that failure to timely serve the Attorney General in strict compliance with Court of Claims Act § 11 gives rise to a jurisdictional defect (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 723 [1989]; Matter of Dreger v New York State Thruway Auth., 177 AD2d 762, 763 [3d Dept 1991], affd 81 NY2d 721 [1992]; Suarez v State of New York, 193 AD2d 1037, 1038 [3d Dept 1993]).
In his affirmation submitted in support of the State's motion, Defense counsel states that the Attorney General's office received the Claim on August 10, 2010 by regular mail and that the $1.05 postage was insufficient to cover the cost of certified mail, return receipt requested. He further asserts that the defense was properly raised as the State's Fifth Affirmative Defense in its Answer to the Claim. He further asserts that Claimants subsequently served the Claim by certified mail, return receipt requested, on November 26, 2010. Counsel asserts that this date was well beyond the date established by Judge Siegel in his Decision and Order granting the motion to file a late claim. Pursuant to that Decision and Order, the Claim was to be properly served and filed within 60 days of the date of filing of the Decision and Order, i.e., by no later than August 16, 2010.
Claimants' counsel, in her affirmation in opposition to the motion, does not controvert that the Claim was not timely served upon Defendant. Counsel asserts that the State's motion should be denied as untimely pursuant to CPLR 3211(e). However, CPLR 3211(e) provides that "an objection that the summons and complaint, summons with notice, or notice of petition and petition was not properly served is waived if, having raised such an objection in a pleading, the objecting party does not move for judgment on that ground within sixty days after serving the pleading … ." The statute does not refer to a claim and none of the documents listed in the statute are proper pleadings to commence an action in the Court of Claims. Thus, it has been held that this provision of CPLR 3211(e) does not apply to practice in the Court of Claims (Diaz v State of New York, 174 Misc 2d 63, 65 [Ct Cl 1997]; see Knight v State of New York, 177 Misc 2d 181, 183 [Ct Cl 1998]).
The failure to properly serve the Attorney General gives rise to a defect in jurisdiction which, if not raised with particularity, is subject to the waiver provisions of Court of Claims Act § 11(c) (see Finnerty v New York State Thruway Auth., supra; Matter of Dreger v New York State Thruway Auth., supra; Suarez v State of New York, supra; Knight v State of New York, supra).
Section 11 of the Court of Claims Act constitutes a jurisdictional prerequisite to the institution and maintenance of a claim against the State and, thus, must be strictly construed (Buckles v State of New York, 221 NY 418 [1917]; Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]; Byrne v State of New York, 104 AD2d 782 [2d Dept 1984], lv denied 64 NY2d 607 [1985]). The Court cannot waive a defect in jurisdiction that has been timely raised (Thomas v State of New York, 144 AD2d 882 [3d Dept 1988]). Defendant timely and properly raised, with particularity, its defense that the Claim was delivered by regular mail, not certified mail, return receipt requested, as required by Court of Claims Act § 11(a) as its Fifth Affirmative Defense in its Answer filed on September 13, 2010. Therefore, the Court concludes that Defendant established that the Claim was improperly served upon it. The Claim was subsequently properly served upon Defendant on November 26, 2010. However, it is undisputed that this was beyond the time frame established by Judge Siegel and beyond the time to amend a pleading as provided by CPLR 3025 and Court of Claims Rules § 206.7(b).
Claimant's cross-motion, pursuant to CPLR 2001, to disregard Claimant's mistake as a non-prejudicial defect is denied. As stated above, Section 11 of the Court of Claims Act constitutes a jurisdictional prerequisite to the institution and maintenance of a claim against the State and, thus, must be strictly construed (Buckles v State of New York, supra; Ivy v State of New York, supra; Byrne v State of New York, supra). The Court cannot waive a defect in jurisdiction that has been timely raised (Thomas v State of New York, supra). CPLR 2001 applies only to non-jurisdictional defects (Matter of Vetrone v Mackin, 216 AD2d 839, 841[3d Dept 1995]; Narvaez v State of New York, UID No. 2000-015-018 [Ct Cl, Collins, J., April 6, 2000]).
Based upon the foregoing, Defendant's motion is granted and the Claim is hereby dismissed for failure to properly serve the Claim upon the Attorney General as required by Court of Claims Act § 11(a)(i). The cross-motion to correct the defect pursuant to CPLR 2001 is denied.
August 15, 2012
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court on Defendant's motion to dismiss and Claimants' cross-motion:
Papers Numbered
Notice of Motion, Affirmation in Support
and Exhibits Attached 1
Notice of Cross-Motion, Affirmation in
Support and Exhibits Attached 2
Defendant's Reply & Opposition to Cross-Motion 3
Filed Papers: Claim, Answer