Delucia v. State, 2022-50324

CourtNew York Court of Claims
Writing for the CourtWALTER RIVERA, J.
PartiesCarlos Delucia, Leon Santiago and Theodore Dymi, Claimants, v. The State of New York, Defendant.
Decision Date02 March 2022
Docket Number2022-50324,Claim 134317

Carlos Delucia, Leon Santiago and Theodore Dymi, Claimants,
v.

The State of New York, Defendant.

No. 2022-50324

Claim No. 134317

Court of Claims

March 2, 2022


Unpublished Opinion

MOTION DECISION

For Claimants: TRACIE A. SUNDACK & ASSOCIATES, LLC (By: Jeffrey R. Pollack, Esq.)

For Defendant: LETITIA JAMES, Attorney General of the State of New York (By: Joseph E. Scolavino, Assistant Attorney General)

WALTER RIVERA, J.

The following papers numbered 1-4 were read and considered by the Court on claimants' motion for an order pursuant to Court of Claims Act § 10 (8) (a) to treat claimants' notices of intention as a claim or, alternatively, to file a late claim pursuant to Court of Claims Act § 10 (6), and on the State's cross-motion for leave to amend the State's answer under CPLR 3025 (b) to include affirmative defenses pertaining to timeliness and the serious injury threshold, and to dismiss the claim under CPLR 3211 (a) (2) and (a) (7) for, respectively, untimely service and failure to state a cause of action:

Notice of Motion, Attorney's Supporting Affirmation, and Exhibits 1

Notice of Cross-Motion, State's Attorney's Affirmation in Support of Cross-Motion and in Opposition to Motion, Exhibits, and Memorandum of Law 2

Attorney's Affirmation in Reply and in Opposition to Cross-Motion, and Exhibit 3

Reply to Claimants' Opposition 4

The joint claim for negligence by three incarcerated individuals alleges that on February 17, 2018, at approximately 7:50 p.m., claimants sustained serious injuries while riding in a bus owned by the Department of Corrections and Community Supervision that was involved in an accident on the Gateway Bridge at Sing Sing Correctional Facility. The driver was allegedly negligent in attempting to drive up a hill in poor weather conditions, resulting in the bus sliding down the hill and striking a guardrail (Pollack Aff., Ex. D [claim]). After claimants each filed a notice of intention to file a claim, the joint claim was filed on January 21, 2020, and it was received by the Attorney General's Office on April 23, 2020 (Pollack Aff., Ex. E). The State served an answer on June 26, 2020 (Pollack Aff., Ex. F). Claimants served their bill of particulars on November 6, 2020 (Pollack Aff., Ex. H).

On August 13, 2021, claimants filed a motion for an order pursuant to Court of Claims Act § 10 (8) (a) to treat claimants' notices of intention as a claim or, alternatively, to file a late claim pursuant to Court of Claims Act § 10 (6). The State opposes and cross-moves for leave to amend the State's answer under CPLR 3025 (b) to include affirmative defenses pertaining to timeliness and the serious injury threshold, and to dismiss the claim under CPLR 3211 (a) (2) for untimely service, and under CPLR 3211 (a) (7) for failure to state a cause of action. Claimants oppose the cross-motion. The court will first discuss the cross-motion, which is dispositive.

Cross-Motion (CM-97475)

"In the absence of prejudice or surprise to the opposing party, leave to amend a pleading should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit" (Reese v Jahan Contr., 120 A.D.3d 1399, 1400 [2d Dept 2014]; see CPLR 3025 [b]; Bernardi v Spyratos, 79 A.D.3d 684, 688 [2d Dept 2010]). The State seeks to amend its answer by adding the following two affirmative defenses:

"EIGHTH AFFIRMATIVE DEFENSE
10. Pursuant to Court of Claims Act §10(3) and §11(a)(i), this Court lacks subject matter jurisdiction of the Claim, as Claimants failed to serve the Claim within two years of the accrual date
NINTH AFFIRMATIVE DEFENSE
11. Claimants fail to state a cause of action, in that, there is no allegation of a 'serious injury' or 'economic loss greater than basic economic loss' as required by Insurance Law §§5102(d) and 5014(a), in accordance with CPLR § 3016(g)" (Scolavino Aff Ex. H [amended answer]). [1]

Court of Claims Act § 10 (3) requires that negligence claims be filed and served within 90 days following accrual of the claim unless a notice of intention to file a claim is served within that time period "in which event the claim shall be filed and served upon the attorney general within two years after the accrual" (Lyles v State of New York, 3 N.Y.3d 396, 400 [2004])." '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'" (Lichtenstein v State of New York, 93 N.Y.2d 911, 913 [1999], quoting Dreger v New York State Thruway Auth., 81 N.Y.2d 721, 724 [1992]).

The claim accrued on February 17, 2018. Two years from that date was February 17, 2020. The State argues that the claim was served 66 days past expiration of the two-year extension that was triggered by timely service of the notices of intention. Claimants respond that pursuant to Court of Claims Act § 11 (c), the State has waived its objection to untimely service of the claim by not moving to dismiss the claim on that ground before filing and serving an answer, and by not pleading untimely...

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