Calco v. State

• Decision Date: 14 February 1991
• Citation: 565 N.Y.S.2d 880,165 A.D.2d 117
• Parties: Antonio CALCO, Appellant, v. STATE of New York, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 880

565 N.Y.S.2d 880

165 A.D.2d 117

Antonio CALCO, Appellant, v. STATE of New York, Respondent.

Supreme Court, Appellate Division,

Third Department.

Feb. 14, 1991.

Myron G. Lasser, P.C., Staten Island, for appellant.

Robert Abrams, Atty. Gen. (Dennis Hurley and Peter J. Dooley, of counsel), Albany, for respondent.

Before MAHONEY, P.J., and WEISS, MIKOLL, YESAWICH and HARVEY, JJ.

MAHONEY, Presiding Justice.

Claimant was injured in an automobile accident on November 20, 1987 on State Route 23 in the Town of Kortright, Delaware County. A notice of intention to file a claim was served within 90 days and a claim alleging negligent maintenance, operation and control of the road was thereafter filed and served, although after the 90-day period expired. The State answered, alleging a lack of jurisdiction because the notice of intention was served improperly. Specifically, the State claimed that the notice of intention was not personally served on an Assistant Attorney-General as required by CPLR 307(1) (see, Court of Claims Act § 11). Claimant moved to dismiss this defense and the State cross-moved to dismiss the claim. The Court of Claims granted the State's cross motion, denied claimant's motion and dismissed the claim, but referred claimant to the late filing provisions of Court of Claims Act § 10(6). Claimant appeals from the order entered. He thereafter moved for permission to file a late claim. The Court of Claims denied the motion essentially because of insufficient allegations of negligence. From that order, claimant also appeals.

There apparently has arisen some uncertainty over whether improper service under Court of Claims Act § 11 is related to personal or subject matter jurisdiction (see, Finnerty v. New York State Thruway Auth., 75 N.Y.2d 721, 551 N.Y.S.2d 188, 550 N.E.2d 441; Sandoval v. State of New York, 147 Misc.2d 1072 [July 17, 1990], 559 N.Y.S.2d 115; Colon v. State of New York, 146 Misc.2d 1034, 553 N.Y.S.2d 979). This uncertainty need not detain us because the alleged defect herein was timely raised so that its characterization as personal or subject matter jurisdiction is inconsequential. Under such circumstances, our assessment is guided by the observation that a notice of intention to file a claim which is improperly served is to be given no effect (see, Baggett v. State of New York, 124 A.D.2d 969, 508 N.Y.S.2d 823). There is no dispute herein that the notice of intention was not served on an Assistant Attorney-General as required by statute. Rather, claimant contends that service was made on a person who represented that he was an agent authorized to accept legal papers so that service should be upheld.

Claimant's attorney attested to what he believed occurred at the time service purportedly was made, but in the absence of first-hand knowledge these affidavits cannot support claimant's contention (see, Ladd v. Coldwell Banker, 167 A.D.2d 676, 563 N.Y.S.2d 255). Significantly, there is no submission by claimant's process server other than the affidavit of service. That the recipient of the notice of intention might have identified himself as an agent who was authorized to accept legal papers is far removed from any clear expression of his status as an Assistant Attorney-General authorized to accept service. This is not the kind of situation where estoppel is available to be applied against a government ( see, Matter of Hampton's Hosp. & Med. Center v. Moore, 52 N.Y.2d 88, 93-94, 436 N.Y.S.2d 239, 417 N.E.2d 533). We simply do...