Johnson v. N.Y. State

• Decision Date: 25 March 2010
• Citation: 71 A.D.3d 1355,897 N.Y.S.2d 748
• Parties: Kathleen JOHNSON, as Administrator of the Estate of Amy Johnson, Deceased, Respondent, v. NEW YORK STATE et al., Appellants.
• Court: New York Supreme Court — Appellate Division

897 N.Y.S.2d 748

71 A.D.3d 1355

Kathleen JOHNSON, as Administrator of the Estate of Amy Johnson, Deceased, Respondent,

v.NEW YORK STATE et al., Appellants.

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

March 25, 2010.

Andrew M. Cuomo, Attorney General, Albany (Kathleen M. Arnold of counsel), for appellants.

Grace & Grace, Yorktown Heights (Michael J. Grace of counsel), for respondent.

Before: PETERS, J.P., MALONE JR., KAVANAGH, McCARTHY and GARRY, JJ.

GARRY, J.

Appeal from an order of the Court of Claims (Hard, J.), entered January 22, 2009, which denied defendants' motion to dismiss the claim.

Amy Johnson (hereinafter decedent) suffered fatal injuries in an automobile accident that occurred while she was a passenger in a vehicle traveling on the New York State Thruway on February 8, 2004. Shortly after being appointed administrator of decedent's estate, claimant served a notice of intention to file a claim on the Attorney General and defendant New York State Thruway Authority ( see Court of Claims § 11[a][i], [ii] ). Although claimant subsequently filed a wrongful death claim and served the Attorney General-on February 6, 2006-no such claim was served on the Thruway Authority. Consequently, in their answer, the Thruway Authority and defendant New York State asserted, among other things not relevant here, that "[t]he Court lacks jurisdiction of the defendant, the New York State Thruway Authority." In May 2008, with the Thruway Authority having yet to be served with a copy of the claim, defendants moved to dismiss the claim on the grounds that the Court of Claims lacked personal and subject matter jurisdiction over the Thruway Authority and that the statute of limitations within which to serve the Thruway Authority had expired. Concluding that defendants had waived such defenses by failing to plead them with the particularity required by Court of Claims Act § 11(c), the Court of Claims denied the motion. This appeal ensued.

We reverse. In order to properly commence an action against it in the Court of Claims, the Thruway Authority must be timely served with a copy of the claim ( see Court of Claims § 11[a][ii]; see generally Tooks v. State of New York, 40 A.D.3d 1347, 1348, 836 N.Y.S.2d 379 [2007], lv. denied 9 N.Y.3d 814, 848 N.Y.S.2d 25, 878 N.E.2d 609 [2007] ). Claimant's failure to serve a copy of the claim with the Thruway Authority resulted not in a failure of personal jurisdiction, but in a failure of subject matter jurisdiction, which may not be waived ( see Finnerty v. New York State Thruway Auth., 75 N.Y.2d 721, 723, 551 N.Y.S.2d 188, 550 N.E.2d 441 [1989]; Rodriguez v. State of New York, 307 A.D.2d 657, 657, 762 N.Y.S.2d 836 [2003]; Suarez v. State of New York, 193 A.D.2d 1037, 1038, 598 N.Y.S.2d 381 [1993] ). Thus, the sectionrelied upon by claimant does not preserve this claim ( see Court of Claims Act § 11[c] ). Moreover, service upon the Attorney General does not qualify as service on the Thruway Authority ( see Brinkley v. City Univ. of N.Y., 92 A.D.2d 805, 806, 460 N.Y.S.2d 53 [1983]; Bonaventure v. New York State Thruway Auth., 108 A.D.2d 1002, 1003, 485 N.Y.S.2d 391 [1985]; Cantor v. State of New York, 43 A.D.2d 872, 873, 351 N.Y.S.2d 197 [1974]; cf. Matter of Dreger v. New York...