Carey v. State

• Decision Date: 08 July 2022
• Docket Number: 473,CA 21-00578
• Parties: William H. CAREY and Barbara B. Carey, as Administrators of the Estate of Michael W. Carey, Claimants-Respondents, v. STATE of New York, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

207 A.D.3d 1194

171 N.Y.S.3d 722

William H. CAREY and Barbara B. Carey, as Administrators of the Estate of Michael W. Carey, Claimants-Respondents,

v.STATE of New York, Defendant-Appellant.

473

CA 21-00578

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: July 8, 2022

LETITIA JAMES, ATTORNEY GENERAL, ALBANY (KATHLEEN M. TREASURE OF COUNSEL), FOR DEFENDANT-APPELLANT.

PRESENT: SMITH, J.P., CENTRA, NEMOYER, CURRAN, AND BANNISTER, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Defendant, State of New York (State), appeals from an order granting claimants’ renewed motion seeking leave to file a late claim. We affirm.

On April 19, 2015, claimants’ son (decedent) died while incarcerated at a correctional facility, and on April 17, 2017, claimants moved for leave to file a late claim pursuant to Court of Claims Act § 10 (6). In their proposed claim, claimants asserted, inter alia, negligence and medical malpractice claims based on the State's failure to provide appropriate medical treatment to decedent. On August 9, 2018, the Court of Claims denied the motion, determining that claimants had failed to demonstrate the merit of the proposed claim. On March 11, 2019, claimants moved for leave to renew their motion. The court granted leave to renew and the underlying motion for leave to file a late claim to the extent of allowing claimants to file a claim based upon negligence.

The State contends that the court lacked authority to grant the renewed motion for leave to file a late claim because the statute of limitations had run. We reject that contention. "Because suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed" ( Dreger v. New York State Thruway Auth. , 81 N.Y.2d 721, 724, 593 N.Y.S.2d 758, 609 N.E.2d 111 [1992] ). "[T]he failure to comply with ... Court of Claims Act § 10 (3), concerning the timing of a notice of intent or a claim, ... deprives a court of subject matter jurisdiction requiring dismissal of the claim" ( Gang v. State of New York , 177 A.D.3d 1300, 1301, 113 N.Y.S.3d 423 [4th Dept. 2019] ; see Hatzfeld v. State of New York , 104 A.D.3d 1165, 1166, 961 N.Y.S.2d 670 [4th Dept. 2013] ; Ivy v. State of New York , 27 A.D.3d 1190, 1190-1191, 810 N.Y.S.2d 769 [4th Dept. 2006] ). Nevertheless, Court of Claims Act § 10 (6) gives a court "discretionary power to allow the late filing of a claim upon consideration of a number of factors, including the merits of the case" ( Lichtenstein v. State of New York , 93 N.Y.2d 911, 912, 690 N.Y.S.2d 851, 712 N.E.2d 1218 [1999] ; see Stirnweiss v. State of New York , 186 A.D.3d 1444, 1445, 131 N.Y.S.3d 25 [2d Dept. 2020] ). The motion, however, must be made before the expiration of the applicable statute of limitations under article two of the CPLR (see Court of Claims Act §§ 10 [6] ; 12 [2]; Shah v. State of New York , 178 A.D.3d 871, 872, 111 N.Y.S.3d 910 [2d Dept. 2019], appeal dismissed 35 N.Y.3d 982, 125 N.Y.S.3d 72, 148 N.E.3d 536 [2020], lv dismissed in part and denied in part 35 N.Y.3d 1107, 132 N.Y.S.3d 721, 157 N.E.3d 675 [2020], rearg denied 36 N.Y.3d 1047, 140 N.Y.S.3d 478, 164 N.E.3d 284 [2021] ; Campos v. State of New York , 139 A.D.3d 1276, 1278, 33 N.Y.S.3d 479 [3d Dept. 2016] ; see generally Alston v. State of New York , 97 N.Y.2d 159, 163, 737 N.Y.S.2d 45, 762 N.E.2d 923 [2001] ). Once the statute of limitations has expired on the proposed claims, a court is without discretion to entertain an application for leave to file a late claim (see generally Matter of Goffredo v. City of New York , 33 A.D.3d 346, 347, 830 N.Y.S.2d 11 [1st Dept. 2006] ).

We note that the court did not allow claimants to file a claim based on medical malpractice, which has a 2½-year statute of limitations ( CPLR 214-a ), but rather permitted claimants to file a claim only for negligence, which has a three-year statute of limitations ( CPLR 214 [5] ). We agree with the State that the renewed motion for leave to file a late claim did not relate back to the date of the original motion for that relief (see Matter of Lubin v. City of New York , 148 A.D.3d 898, 900, 50 N.Y.S.3d 405 [2d Dept. 2017], lv dismissed 32 N.Y.3d 1218, 98 N.Y.S.3d 761, 122 N.E.3d 559 [2019] ; Matter of Adams v. City of New York , 180 A.D.2d 629, 630, 579 N.Y.S.2d 170 [2d Dept. 1992] ; Matter of Asaro v. City of New York , 167 A.D.2d 130, 131, 561 N.Y.S.2d 218 [1st Dept. 1990], lv dismissed in part and denied in part 77 N.Y.2d 956, 570 N.Y.S.2d 486, 573 N.E.2d 574 [1991] ). We nevertheless conclude that the statute of limitations on the negligence claim had not expired at the time of the renewed motion because of the CPLR 204 (a) toll, and we reject the State's contention that the CPLR 204 (a) toll does not apply to claims against the State (see generally Kealos v. State of New York , 150 A.D.3d 1211, 1213, 55 N.Y.S.3d 411 [2d Dept. 2017] ).

CPLR 204 (a) provides that "[w]here the commencement of an action has been stayed by a court or by statutory prohibition, the duration of the stay is not a part of the time within which the action must be commenced." CPLR 204 (a) tolls the running of the statute of limitations while a motion seeking leave to file a late claim is pending (see generally Matter of Stevenson v. County of Monroe , 63 N.Y.2d 963, 965, 483 N.Y.S.2d 987, 473 N.E.2d 237 [1984] ; Giblin v. Nassau County Med. Ctr. , 61 N.Y.2d 67, 72, 74, 471 N.Y.S.2d 563, 459 N.E.2d 856 [1984] ; Kulon v. Liberty Fire Dist. , 162 A.D.3d 1178, 1179, 77 N.Y.S.3d 788 [3d Dept. 2018] ; Young Soo Chi v. Castelli , 112 A.D.3d 816, 817, 979...