Finnerty v. New York State Thruway Authority

• Decision Date: 27 May 1988
• Docket Number: No. 69631,69631
• Citation: 529 N.Y.S.2d 621,140 A.D.2d 941
• Parties: James M. FINNERTY, Respondent, v. NEW YORK STATE THRUWAY AUTHORITY, Appellant. (Claim)
• Court: New York Supreme Court — Appellate Division

Page 621

529 N.Y.S.2d 621

140 A.D.2d 941

James M. FINNERTY, Respondent, v. NEW YORK STATE THRUWAY AUTHORITY, Appellant. (Claim No. 69631.)

Supreme Court, Appellate Division Fourth Department.

May 27, 1988.

Robert Abrams, by Wayne Benjamin, Albany, for appellant.

Jaeckle, Fleischmann & Mugel, by David Hehr, Buffalo, for respondent.

Before DOERR, J.P., and DENMAN, GREEN, LAWTON and DAVIS, JJ.

MEMORANDUM:

Plaintiff commenced this action against the Thruway Authority in the Court of Claims by serving the claim on the Thruway Authority and filing two copies of it with the clerk of the court. Plaintiff neglected to serve the claim upon the Attorney General and the clerk did not deliver a copy to the Attorney General. Subsequently, the Attorney General moved on behalf of the Thruway Authority to dismiss the claim for failure to serve the Attorney General. The court denied the motion, holding that service on the Attorney General was unnecessary to give the Court of Claims jurisdiction over the Thruway Authority. We reverse and dismiss the claim.

As it read when this claim was instituted, Court of Claims Act § 11 provided, in pertinent part: "The claim or notice of intention shall be filed with the clerk of the court and a copy shall be served upon the Attorney-General within the times hereinbefore provided for filing with the clerk of the court." In cases involving claims against the State itself, it has been uniformly held that failure to serve the Attorney General pursuant to Court of Claims Act § 11 divests the court of jurisdiction over the State ( see, e.g., Jackson v. State of New York, 85 A.D.2d 818, 445 N.Y.S.2d 620, lv. denied 56 N.Y.2d 568, 450 N.Y.S.2d 185, 435 N.E.2d 402; Matter of Welch v. State of New York, 71 A.D.2d 494, 498, 423 N.Y.S.2d 102, lv. denied 50 N.Y.2d 802, 430 N.Y.S.2d 1026, 407 N.E.2d 1354; Andriola v. State of New York, 53 A.D.2d 966, 967-968, 385 N.Y.S.2d 834). We read § 11 as a manner of service provision and hold that pursuant to its terms, service on the Attorney General is a predicate to obtaining personal jurisdiction over any defendant in the Court of Claims, including a defendant other than the State. Public Authorities Law § 361-b supports the conclusion that service pursuant to § 11 is required in order to sue the Thruway Authority. That statute authorizes the Court of Claims to hear claims against the Thruway Authority "in the same manner and to the extent provided by and subject to the provisions of the Court of Claims Act with respect to claims against the State." Several cases also support that interpretation. In Brinkley v. City Univ. of N.Y., 92 A.D.2d 805, 806, 460 N.Y.S.2d 53, for example, the First Department held that "(i)n addition to the usual service and filing requirements imposed by the Court of Claims Act, in any claim brought against it, CUNY must also be served" (emphasis supplied; see also, Jones v. City Univ. of N.Y., 57 N.Y.2d 984, 987-988, 457 N.Y.S.2d 235, 443 N.E.2d 483).

Bonaventure v. New York State Thruway Auth., 108 A.D.2d 1002, 485 N.Y.S.2d 391, relied upon by the trial court, is distinguishable. That case merely holds that service on the Attorney General alone is insufficient to obtain jurisdiction over the Thruway Authority, not that such service is unnecessary to obtain jurisdiction over the Authority in the Court of Claims ( ...