Muller v. State

• Decision Date: 06 May 1985
• Parties: Ernest MULLER, et al., Respondents, v. The STATE of New York, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 751

488 N.Y.S.2d 751

108 A.D.2d 181

Ernest MULLER, et al., Respondents, v. The STATE of New York, et al., Appellants.

Supreme Court, Appellate Division Second Department.

May 6, 1985.

Robert Abrams, Atty. Gen., Albany (Michael S. Buskus and Peter J. Dooley, Asst. Attys. Gen., Albany, of counsel), for appellants.

Kaiser, Murray, Collier & Murphy, Ellenville (William H. Collier, III, Ellenville, of counsel; William R. Collins, on brief), for respondents.

Before LAZER, J.P., and THOMPSON, WEINSTEIN and EIBER, JJ.

LAZER, Justice Presiding.

Although the primary issue relates to the judicial power to impose tort liability for planning decisions of governmental agencies, also before us is a significant jurisdictional question raised by the New York State Thruway Authority (the Authority). Claimants filed this claim to recover damages from the State of New York and the Authority for personal injuries and loss of consortium arising out of an automobile accident on the Tappan Zee Bridge. The accident occurred when a vehicle traveling in the opposite direction crossed the median area and struck an automobile owned and driven by claimant Ernest Muller. The claim alleges that Mr. Muller would not have been injured but for the negligent failure of defendants to install median barriers on the central portion of the bridge. At the conclusion of the liability portion of the trial, the claim was dismissed as against the State of New York. The Court of Claims found the Authority liable, however, and after a trial on the issue of damages, judgment was awarded in favor of claimant Ernest Muller in the amount of $50,000 and in favor of claimant Patricia Muller in the amount of $500, together with interest. On this appeal, the State of New York and the Authority contest only a question of jurisdiction and the determination of liability, no issue having been raised with respect to the amount of the damages. Before turning to the jurisdictional question, we note that the appeal by the State must be dismissed. Because the claim against the State was dismissed by the Court of Claims, it is not aggrieved by the judgment appealed from and thus is not a permissible appellant (CPLR 5511).

I

Initially, the Authority asserts that the Court of Claims proceeded in the absence of jurisdiction. Claimants filed their notice of claim with the Court of Claims and served it upon the Attorney-General in a timely fashion. The court forwarded a copy of the notice of claim to the Authority, which received it within 90 days of the accident. Claimants themselves never actually served the notice of claim upon the Authority, however, and that body now argues that the lack of such service deprived the Court of Claims of jurisdiction to adjudicate the claim against it.

Public Authorities Law § 361-b provides that all claims against the Authority shall be asserted in the Court of Claims "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". Pursuant to Court of Claims Act §§ 10 and 11, a claim is asserted by the filing of a notice of claim with the court and the service of such notice upon the Attorney-General. Failure to serve the Attorney-General is excusable, however, with respect to claims arising prior to January 1, 1985, if the court forwards a copy of the notice to the Attorney-General and it is received within the required time period (L. 1962, ch. 311, § 5, as amended by L. 1976, ch. 305, § 1, as amended by L. 1984, ch. 427, §§ 1, 3).

Claimants' response to the jurisdictional argument is well reasoned, and were we writing upon a clean slate we might adopt it. Simply put, claimants contend that in the absence of any statutory requirement of service upon the Thruway Authority and in the face of a statutory scheme which specifically requires service upon the Attorney-General and makes no mention of service upon anyone else, it is a trap for the unwary if the courts mandate service upon the Authority as well. Moreover, although traditional concepts of personal jurisdiction relative to other litigation (see Siegel, New York Practice, ch. 4) require service upon the entity being sued, it can be argued that those principles are simply not relevant to the procedures for filing a claim in the Court of Claims. It is well settled that a failure to comply with the Court of Claims filing procedures results in the absence of subject matter rather than personal jurisdiction. This is because compliance with these procedures is necessary to invoke the State's waiver of sovereign immunity but it is not intended to provide personal jurisdiction (see, e.g., Lurie v. State of New York, 52 N.Y.2d 849, 437 N.Y.S.2d 77, 418 N.E.2d 670, affg 73 A.D.2d 1006, 423 N.Y.S.2d 969; Buckles v. State of New York, 221 N.Y. 418, 117 N.E. 811; Gates v. State of New York, 128 N.Y. 221, 28 N.E. 373; see also, Easley v. New York State Thruway Auth., 1 N.Y.2d 374, 153 N.Y.S.2d 28, 135 N.E.2d 572). Since the failure to properly file a claim does not implicate the concept of personal jurisdiction and no statute mandates service upon the Authority, it might be reasonable to conclude that a claim against the Authority may be instituted by service upon the Attorney-General and it is not necessary to serve the Authority.

The weight of precedent is to the contrary, however. The Third Department has held that filing of a notice of claim with the Court of Claims and service upon the Attorney-General does not provide the Court of 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). Furthermore, in McCormick v. State of New York, 44 N.Y.2d 774, 406 N.Y.S.2d 37, 377 N.E.2d 481, affg 51 A.D.2d 28, 378 N.Y.S.2d 991 on relevant part of opn. at App.Div., the Court of Appeals held that filing with the Court of Claims and service upon the Attorney-General did not serve to confer jurisdiction upon that court over a claim against the East Hudson Parkway Authority, which at that time was subject to claims for tort liability in the Court of Claims under a statute containing the same language that presently governs suits against the Thruway Authority (compare, Public Authorities Law § 361-b, with L.1963, ch. 962, § 6, repealed L.1979, ch. 370, § 4). Because the relevant sections of the East Hudson Parkway Authority provisions were identical to those in the Thruway Authority statute, the same rules obviously should apply to both. Similarly, the First Department has interpreted another such statute as requiring service upon the City University of New York (Brinkley v. City Univ. of N.Y., 92 A.D.2d 805, 460 N.Y.S.2d 53; accord Bicjan v. Hunter Coll. of City Univ. of N.Y., 116 Misc.2d 978, 457 N.Y.S.2d 387). Therefore, we find ourselves constrained to reject claimants' contention that the mere filing with the Court of Claims and service upon the Attorney-General sufficed to confer jurisdiction upon the Court of Claims.

We conclude, nevertheless, that the Court of Claims did properly assert jurisdiction over the instant claim against the Authority. As an alternative ground for its holding, the Court of Claims determined that it had jurisdiction because its Clerk had timely forwarded to the Authority a copy of the notice of claim filed with the court. This ruling was apparently based upon the former provisions of Court of Claims Act § 11, which remain applicable to claims accruing prior to January 1, 1985, and which, in such claims, allow the court to exercise jurisdiction despite a failure to serve the Attorney-General, if the claimant has timely filed a notice of claim with the court, the court has forwarded the notice to the Attorney-General, and the Attorney-General has received the notice within the time required (L.1962, ch. 311, § 5, as amended by L.1976, ch. 305, § 1, as amended by L.1984, ch. 427, §§ 1, 3). Although the former provisions of Court of Claims Act § 11 refer only to the Attorney-General and not to any other agency that might be the subject of a claim, in the absence of any statute requiring or describing service upon the Authority, the procedures applicable to service upon the Attorney-General should be applied when the claim is against some agency other than the State itself. Since the effect of the judicial gloss we have mentioned is the insertion of a requirement in Court of Claims Act § 11 that service be effected upon the Authority as well as the Attorney-General, the benefits as well as the burdens of that statute should be conferred upon prospective claimants. We hold, then, that jurisdiction over this claim against the Thruway Authority was obtained when the Authority received a copy of the notice of claim from the Clerk of the Court of Claims within the required time period.

II

With the jurisdiction issue disposed of, we reach the merits of the liability claim. The Authority contends that the judgment against it must be overturned because its failure to install median barriers was based on appropriate studies by the Authority's staff of experts (see Weiss v. Fote, 7 N.Y.2d 579, 200 N.Y.S.2d 409, 167 N.E.2d 63). It is with some reluctance that we reach the same conclusion.

The Tappan Zee Bridge, the scene of the accident, runs in an east-west direction across the Hudson River. Both the eastern and western approaches are curved, but the central or tangent section of the bridge forms a straight line. The accident took place on this straight section of the bridge. At the time of the accident in 1977, median barriers had been constructed along both the western and eastern curves, but no barriers had then been installed on the straight section.

The bridge was constructed without any median barriers in the early 1950s and was opened in 1955. No...