Cantor v. State, 52857
| Decision Date | 17 January 1974 |
| Docket Number | No. 52857,52857 |
| Court | New York Supreme Court — Appellate Division |
| Parties | Irving CANTOR, Respondent, v. STATE of New York et al., Appellants. Claim |
Sidney B. Weinberger, New York City (Marshall L. Brenner, Poughkeepsie, of counsel), for respondent.
Louis J. Lefkowitz, Atty. Gen. (Grace K. Banoff, Albany, of counsel), for appellants.
Before STALEY, J.P., and GREENBLOTT, SWEENEY, KANE and MAIN, JJ.
Appeal from an order of the Court of Claims, entered October 21, 1971, which denied a motion of the State of New York to dismiss the claim and granted claimant's cross motion to include the New York State Thruway Authority as a party defendant in the notice of intention to file a claim and the claim, Nunc pro tunc as of the date upon which the notice of intention to file a claim was originally served.
On January 30, 1969 claimant sustained injuries as a result of an accident on the New York State Thruway. He served a notice of intention to file a claim upon the State of New York, the Attorney General and the Court of Claims on March 17, 1969, and thereafter, on August 21, 1970, served a claim upon the Attorney General and the Court of Claims, pursuant to section 11 of the Court of Claims Act. Each of these documents so served alleged that the accident occurred as a result of negligence in the maintenance of the Thruway and named only the State of New York as defendant.
On October 28, 1971, six days prior to the scheduled trial of this matter, the Attorney General moved to dismiss the claim for failure to state a cause of action against the State of New York. In an accompanying affidavit, he explained that the New York State Thruway Authority is a public corporation, independent of the State and solely liable for negligence in the maintenance of the Thruway. Since it had not been joined as a defendant in this matter, he reasoned that the court lacked jurisdiction over the only party who might ultimately be held liable for the alleged negligence. In response, claimant cross-moved to include the Authority as a party defendant.
The trial court, finding that 'defendant had sufficient notice' of the direct involvement of the Authority and that there had been substantial compliance with the Court of Claims Act, denied the State's motion to dismiss and granted claimant's cross motion. It declared, citing Tomlinson Bros. v. State of New York, 15 A.D.2d 692, 693, 223 N.Y.S.2d 299, 300, that the 'mere nominal irregularity here involved should be disregarded.'
We disagree. While there are many similarities between the present situation and that in Tomlinson Bros. v. State of New York (supra), the cases are readily distinguishable. In both instances, claimants failed to include the Authority in the caption on the notice of intention to file a claim and on the claim itself. However, in the earlier case, the notice and claim were each initially served upon the...
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...Claims with jurisdiction to hear a claim against the Thruway Authority unless there is service upon the Authority (Cantor v. State of New York, 43 A.D.2d 872, 351 N.Y.S.2d 197; accord MacFarland-Breakell Bldg. Corp. v. New York State Thruway Auth., 123 Misc.2d 307, 472 N.Y.S.2d 1004). Furth......
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