Kureczka v State of New York

[*1] Kureczka v State of New York 2009 NY Slip Op 50277(U) [22 Misc 3d 1125(A)] Decided on January 30, 2009 Ct Cl Ferreira, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 30, 2009
Ct Cl

Helena Kureczka, Claimant(s)

against

State of New York, Defendant(s)



113041



Claimant's attorney:

Reitz and Chesley

By: Stephen Chesley, Esq.

Defendant's attorney:

Hon. Andrew M. Cuomo

Attorney General of the State of New York

By: Kimberly Kinirons

Assistant Attorney General

James H. Ferreira, J.

Claimant alleges, among other things, that during August 2006 she sustained injuries when she was caused to trip and fall "due to a raised, uneven, pitted, missing broken portion of curb and/or sidewalk and surrounding area" while exiting a bus in front of the State Office Building in Hauppauge, New York. A claim for damages was filed with the Clerk of the Court and served upon the Attorney General. Issue was joined, and defendant served upon claimant's counsel an Amended Verified Answer. In its amended answer, defendant asserts, among other things, that "[t]he Court lacks jurisdiction over the claim due to claimant's failure to timely serve the claim or any notice of intention upon the Attorney General's Office and to timely file the claim or any notice of intention with the Court of Claims, in accordance with Court of Claims Act Sections 10 and 11."

Discovery ensued, and a note of issue and certificate of readiness was filed with the Court on August 15, 2008. Defendant now moves the Court for an order dismissing the claim on the [*2]ground that claimant did not file and serve the claim in a timely manner pursuant to Court of Claims Act §§ 10 and 11. In the alternative, defendant moves the Court for an order granting summary judgment and argues that "the evidence demonstrates that . . . claimant tripped in a trivial defect in a curb." Claimant opposes the motion and requests permission to file a late claim. Defendant further argues that, pursuant to Court of Claims Act § 10 (6), claimant must move for permission to file a late claim, on notice to defendant, and that claimant's request for permission to file a late claim within counsel's affirmation in opposition is procedurally defective.

Court of Claims Act § 10 (3) provides, in relevant part, that "[a] claim to recover damages for injuries to property or for personal injuries caused by the negligence or unintentional tort of an officer or employee of the state while acting as such officer or employee, shall be filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after the accrual of such claim."

It is well settled that " the requirements of the Court of Claims Act as to the filing of claims must be strictly construed because the question of timeliness of filing is jurisdictional' " (Pristell v State of New York, 40 AD3d 1198, 1198 [2007], quoting Roberts v State of New York, 11 AD3d 1000, 1001 [2004]; see also Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]).

Here, it is alleged in claimant's opposition papers and in her deposition testimony, (see claimant's exhibit "D"at p.14), that the claim accrued on August 1, 2006. It is alleged within the claim that the incident occurred on August 2, 2006 (see defendant's exhibit "A"). According to Court records and defendant's time-stamped copy of the claim, the claim was filed with the Court and served upon the Attorney General on November 24, 2006, more than 90 days after its accrual. There being no proof before the Court that a notice of intention to file a claim was served upon the Attorney General within 90 days after the accrual of the claim, the Court is constrained to find that, pursuant to Court of Claims Act § 10 (3), it is without jurisdiction of the claim.

The Court further finds that it must deny claimant's request for permission to file a late claim. Court of Claims Act § 10 (6) states, in relevant part, that "[a] claimant who fails to file or serve upon the attorney general a claim or to serve upon the attorney general a notice of intention, as provided in the foregoing subdivisions, within the time limited therein for filing or serving upon the attorney general the claim or notice of intention, may, nevertheless, in the discretion of the court, be permitted to file such claim at any time before an action asserting a like [*3]claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules. * * * The application for such permission shall be made upon motion returnable at any regular or special session of the court and may be heard and determined by any judge thereof. The claim proposed to be filed, containing all of the information set forth in section eleven of this act, shall accompany such application" (emphasis added).

As at least one appellate court has commented, "it seems to us to be quite evident [that] the statutory intent was to authorize Court of Claims Act § 10 (6) applications to be initiated by simple motion" (Sciarabba v State of New York, 152 AD2d 229, 232 [1989]). Since claimant seeks permission to file a late claim pursuant to Court of Claims Act § 10 (6), but has not made an "application for such permission . . . upon motion," as is required by that section, opting instead to make her request as part of her opposition to defendant's motion, the Court is further constrained to find that claimant's request for permission to file a late claim must be denied.

Accordingly, it is hereby ordered that Motion No. M-75634 is granted, and that the claim is dismissed without prejudice.