Bay Ridge Air Rights, Inc. v. State

• Decision Date: 16 December 1975
• Citation: 84 Misc.2d 801,376 N.Y.S.2d 895
• Parties: BAY RIDGE AIR RIGHTS, INC., Claimant, v. The STATE of New York, Defendant.
• Court: New York Court of Claims

Page 895

376 N.Y.S.2d 895

84 Misc.2d 801

BAY RIDGE AIR RIGHTS, INC., Claimant, v. The STATE of New York, Defendant.

Court of Claims of New York.

Dec. 16, 1975.

Harold M. Foster, by Ronald Pomerance, New York City, for claimant.

Louis J. Lefkowitz, Atty. Gen., by John F. Dyer, Asst. Atty. Gen., for defendant.

MEMORANDUM--OPINION

ALBERT A. BLINDER, Judge.

The Claimant by Motion No. M--17646 moved for an order pursuant to Section 17, Subdivision 2 of the Court of Claims Act directing an examination before trial. The Defendant by Motion No. M--17729 cross moved for judgment pursuant to CPLR 3211(a), Subdivisions 2 and 7, dismissing the claim on the grounds that the claim was not timely filed in accordance with the provisions of Section 10 of the Court of Claims Act. The motions are hereby consolidated for decision.

On July 2, 1972, Salian Benjamin Schwartz was allegedly murdered by a former patient of the Creedmoor Psychiatric Hospital, a state facility operated by the Department of Mental Hygiene. Robert J. Wofford, the alleged assailant, at the time of the homicide an out-patient at Brooklyn State Hospital, was employed by the Claimant herein, Bay Ridge Air Rights, Inc., as a custodian in the building wherein the alleged crime was committed. Thereafter, the Administrator of her estate commenced an action in the United States District Court against the Claimant seeking $4,000,000. in compensatory damages plus $3,000,000. for punitive damages. In that action it was alleged that the Claimant had been negligent in hiring the assailant and in failing to conduct an investigation into his background.

Claimant subsequently commenced a third-party action in the United States District Court against Creedmoor State Hospital and Brooklyn State Hospital, as third-party defendants, alleging that they were liable for any judgment obtained against it or alternatively for contribution pursuant to Article 14 of the CPLR. That third-party complaint against the two hospitals was dismissed on motion of the Attorney General.

Claimant filed a notice of intention to file a claim on June 3, 1975 and a proposed claim on the same date which was denominated Claim No. 59365. The claim avers facts substantially as stated above. It seeks 'indemnification and an apportionme of damages in the event the plaintiff is able to recover against the defendant pursuant to the Rule of DOLE v. DOW CHEMICAL COMPANY, on the ground that the State of New York was negligent in releasing Robert J. Wofford without ensuring that he was not homicidal, pursuant to the Rule of HOMERE v. STATE, Claim No. 55058 and STILLMAN v. STATE, Claim No. 55103 (79 Misc.2d 972, 361 N.Y.S.2d 820), filed November 20, 1974'.

The Defendant's motion to dismiss is predicated on noncompliance with the provisions of Section 10 of the Court of Claims Act. This Court has previously held in Leibowitz v. State of New York, 82 Misc.2d 424, at pp. 428--429, 371 N.Y.S.2d 110, at pp. 113--114 (Ct. of Claims, 1975) that a situation completely apposite to the motion at bar was barred by Section 10(4) of the Court of Claims Act. ^* The Claimant's attorney states that the reason it could not have complied with the requirements of Section 10 is that until the case of Homere v. State of New York, 79 Misc.2d 972, 361 N.Y.S.2d 820 (Court of Claims, 1974) affd. 48 A.D.2d 422, 370 N.Y.S.2d 246 (3rd Dept., 1975) was decided it did not have a cause of action against the State of New York. The Homere case did not have the effect or meaning asserted by the Claimant. The Court does not agree that prior to the Homere decision no claim could have been made against the Defendant nor that any claim so made prior to that date would have been dismissable for failure to state a cause of action.

We are somewhat troubled by the fact that the Assistant Attorney General who appeared in support of the motion to dismiss in the United States District Court stated the following in the State's brief:

'In the final analysis, it is clear that if this motion is granted, the third-party plaintiff is not without a legal remedy. The claims herein can be brought in the New York State Court of Claims pursuant to Sec. 8 and 9 of the Court of Claims Act. (citing cases)'

The Claimant in this Court now argues that the Defendant had previously conceded that this Court has jurisdiction and that therefore the Claimant has a legal remedy in this Court. It is clear, however, that the Defendant's attorney cannot consent to jurisdiction in this Court, if in fact none exists by virtue of the Court of Claims Act. While it is generally true that a party may waive the defense of 'statute of limitations' in litigation, it is not applicable with respect to claims filed against the State of New York. The notice requirements set forth in Section 10 of the Court of Claims Act are not merely 'a statute of limitations' to be pleaded as affirmative defenses. They are conditions precedent for jurisdiction. Hence, they cannot be waived.

At the arguments of the motion herein, the Claimant orally requested that its papers be deemed, in addition, as an application under Section 10, Subdivision 5, for permission to file a late claim, in the event that the Court found non-compliance with Section 10. While the Court would not be adverse to such an application, the matter need not be considered for it appears that in any event an application would not lie under Subdivision 5 of Section 10 of the Court of Claims Act because all such applications must, in any event, be made within two years after the accrual of a claim.

Having thus decided that the claim is not timely under Section 10 of the Court of Claims Act, the Court must grant the Defendant's cross-motion to dismiss the claim. In dismissing the claim, the Court acknowledges that the literal application of Section 10 as applied to the assertion of a cause of action for contribution against the State of New York may be too harsh, indicating as we implied in Leibowitz v. State of New York, supra, 82 Misc.2d 424, 371 N.Y.S.2d 110, the need for further study by the Judicial...