Shimmerlik v. City University of New York

• Decision Date: 16 December 1988
• Docket Number: No. 73431,73431
• Citation: 536 N.Y.S.2d 380,142 Misc.2d 118
• Parties: , 51 Ed. Law Rep. 213 Julie SHIMMERLIK and Warren M. Shimmerlik, as Executors of the Estate of George Shimmerlik, and Julie Shimmerlik, individually, Claimants, v. The CITY UNIVERSITY OF NEW YORK, Defendant.
• Court: New York Court of Claims

Page 380

536 N.Y.S.2d 380

142 Misc.2d 118, 51 Ed. Law Rep. 213

Julie SHIMMERLIK and Warren M. Shimmerlik, as Executors of

the Estate of George Shimmerlik, and Julie

Shimmerlik, individually, Claimants, v. The CITY UNIVERSITY OF NEW YORK, Defendant.

Claim No. 73431.

Court of Claims of New York.

Dec. 16, 1988.

Newmark, Lamb, Dowling & Marchisio (Eugene G. Lamb, Garden City, of counsel), for claimants.

Robert Abrams, Atty. Gen. (William P. Kleen, New York City, of counsel), for defendant.

GERARD M. WEISBERG, Judge.

This is a motion for an order striking the defendant's first affirmative defense or, in the alternative, for an order granting claimants permission to serve a late claim upon the City University of New York (CUNY).

On May 16, 1985, George Shimmerlik allegedly tripped over a piece of gymnasium equipment stored by CUNY at Hunter Elementary School. Within ninety days of the incident, Mr. Shimmerlik and his wife, Julie, served a notice of claim under section 50-e of the General Municipal Law on, among others, defendant. The Shimmerliks did not file this document with the Clerk of this Court nor did they serve it on the Attorney-General. Upon discovering that this Court had jurisdiction over their action against CUNY, the Shimmerliks moved to have the section 50-e notice deemed to be a claim. This was denied by Hon. Louis C. Benza, one of the judges of this Court, without prejudice to a motion for permission to file a late claim pursuant to Court of Claims Act § 10(6) upon proper papers. (Shimmerlik v. CUNY, Ct.Cl., Mar. 20, 1986.)

On or about April 18, 1986, the Shimmerliks so moved on notice to CUNY. Annexed to the papers was the proposed verified claim. The Attorney-General appeared on behalf of CUNY and challenged the relief sought solely on the basis that the claim did not appear to have merit. (See, Court of Claims Act § 10 Judge Benza found it sufficiently meritorious to justify late claim relief and granted the motion. The opinion, incorporated into his order, provided: "Movants shall serve and file their claim in the form proposed (as amended by the Court) in the moving papers within thirty (30) days of the filing of this order, in accordance with the Court of Claims Act and Rules of this Court." (Shimmerlik v. CUNY, Ct.Cl., July 16, 1986.) ¹

Claimants served the claim on the Attorney-General and filed it with the Clerk of this Court. They did not serve CUNY directly, however, and defendant has raised this as an affirmative defense in its answer.

Claimants now move to strike this defense on the theory that they complied with Judge Benza's order which did not require service on CUNY independently of service on the Attorney-General. Alternatively, they pray for permission to serve CUNY directly now should we determine it is required. Defendant's position is that regardless of what Judge Benza's order provided, CUNY must be served with the claim in order for this Court to obtain jurisdiction over it. Late service, it argues further, may not now be authorized because the instant motion was not served until more than three years after the mishap and is, therefore, barred by the statute of limitations. (See, Court of Claims Act § 10[6].)

The time within which a claim must be filed and served is prescribed by sections 10 and 11 of the Court of Claims Act. In order for this Court to be able to enter a judgment predicated on negligence in favor of a claimant, he or she must have filed a claim within 90 days after its accrual or filed a notice of intention within such time followed by a claim within two years of accrual. (Court of Claims Act § 10 A claimant who has failed to timely file a claim or notice of intention may, in the discretion of the Court, be permitted to file the claim at any time before an action asserting a like claim against a citizen of the State would be barred under the statute of limitations. (Court of Claims Act § 10[6].)

Section 11 sets forth the service requirements in this Court and mandates service upon the Attorney-General "within the times hereinbefore provided for filing with the clerk of the court."

With respect to CUNY, Education Law § 6224(4) vests this Court with jurisdiction to determine tort claims against its senior colleges "in the same manner and to the extent provided by and subject to the provisions of the court of claims act, including time limitations, with respect to claims against the state." (See, Jones v. City Univ. of N.Y., 57 N.Y.2d 984, 457 N.Y.S.2d 235, 443 N.E.2d 483.) Moreover, when an entity other than the State is a proper defendant in this Court, case law indicates that service must be made on the entity in addition to the Attorney-General (Finnerty v. New York State Thruway Auth., 140 A.D.2d 941, 529 N.Y.S.2d 621; MacFarland-Breakell Bldg. Corp. v. New York State Thruway Auth., 123 Misc.2d 307, 472 N.Y.S.2d 1004; Bicjan v. Hunter Coll. of the City Univ. of N.Y., 116 Misc.2d 978, 457 N.Y.S.2d 387) notwithstanding that such requirement is not found in the Court of Claims Act and Rules. (Muller v. State of New York, 108 A.D.2d 181, 488 N.Y.S.2d 751, revd. on other grounds sub nom. Friedman v. State of New York, 67 N.Y.2d 271, 502 N.Y.S.2d 669, 493 N.E.2d 893.) In other words, service on the Attorney-General has been held not to be service on CUNY. (Brinkley v. City Univ. of N.Y., 92 A.D.2d 805, 460 N.Y.S.2d 53.)

This brings us to the issues at hand: (1) did Judge Benza's order require service on CUNY in addition to the Attorney-General, and (2) if it did not, but such is required, may we grant claimants permission to effectuate such service now.

The order in question required claimants to serve and file their claim "in accordance with the Court of Claims Act and Rules of this Court." Section 11 required no more than service on the Attorney-General. The Rules provide only that: "Proof of service on the defendant shall be filed with the clerk within ten days of such service." (22 NYCRR 206.5 The Rules do not provide when service must be made, how it must be effectuated or who is authorized to receive it on a defendant's behalf. There is therefore no statutory requirement that CUNY be served independently of the Attorney-General (Muller v. State of New York, 108 A.D.2d 181, 488 N.Y.S.2d 751, revd. on other grounds sub nom. Friedman v. State of New York, 67 N.Y.2d 271, 502 N.Y.S.2d 669, 493 N.E.2d 893, supra ) and Judge Benza's order required only that claimants comply with the statutory requirements. Orders, like other written instruments, are to be construed in accordance with their plain meaning unless ambiguous (73 N.Y.Jur.2d, Judgments, § 21) particularly where a counter interpretation may prove a "trap for the unwary." (Muller v. State of New York, supra, at 183, 488 N.Y.S.2d 751.) We therefore decline to read in such a requirement. Moreover, assuming we find the order ambiguous, an examination of the record to aid in its interpretation leads to the same conclusion.

While Brinkley, supra, held that service on the Attorney-General was not service on CUNY, it must be remembered that the case did not concern a court authorized filing and that the service invalidated therein was made prior to CUNY having appeared in the action. Here, a late claim motion, analogous to a special proceeding, (see, Hop Wah v. State of New York, 137 Misc.2d 751, 522 N.Y.S.2d 413) had been commenced and CUNY had appeared by the Attorney-General. The Court thereby acquired jurisdiction over the defendant (MacFarland-Breakell Bldg. Corp. v. New York State Thruway Auth., 123 Misc.2d 307, 472 N.Y.S.2d 1004, sup...