Welch v. State

• Decision Date: 27 August 2001
• Citation: 729 N.Y.S.2d 527,286 AD2d 496
• Parties: (A.D. 2 Dept. 2001) Kerwyn Welch, appellant, v. State of New York, respondent. 2000-02097 : SECOND JUDICIAL DEPARTMENT
• Court: New York Supreme Court — Appellate Division

Page 527

729 N.Y.S.2d 527 (A.D. 2 Dept. 2001)

Kerwyn Welch, appellant, v. State of New York, respondent.

2000-02097

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT

Submitted February 8, 2001

August 27, 2001

Kerwyn Welch, Queens Village, N.Y., appellant pro se.

Eliot Spitzer, Attorney-General, New York, N.Y. (Peter G. Crary and Patrick Barnett-Mulligan of counsel), for respondent.

SONDRA MILLER, J.P., WILLIAM D. FRIEDMANN, HOWARD MILLER, NANCY E. SMITH, JJ.

In a claim to recover damages, inter alia, for alleged civil rights violations, negligence, and fraud, the claimant appeals from an order of the Court of Claims (Lebous, J.), dated December 13, 1999, which granted the defendant's motion to dismiss the claim as untimely, and denied his cross motion pursuant to CPLR 3126 to strike the answer.

ORDERED that the order is affirmed, with costs.

In August 1989 the claimant allegedly contacted two licensed real estate agencies about apartments to lease. The claimant was dissatisfied with a perceived lack of attentiveness from these agencies, which allegedly failed to return his telephone calls or otherwise undertake any efforts to show him any apartments. Although the claimant did not profess to have been the victim of any racial discrimination, and his initial letter did not disclose his race, in August 1999 he wrote to the New York State Department Licensing Division (hereinafter the State) asking that it commence an investigation. The complaint allegedly went unanswered, and from September to November 1989 the claimant spoke and/or corresponded with investigators in an attempt to prod them into action.

In October 1990 the claimant commenced an action in the United States District Court for the Eastern District of New York against, among others, the two agencies and the State. The action against the State was dismissed in February 1991 because the State is immune from suit in Federal court pursuant to the 11th Amendment to the United States Constitution (see, Welch v Century 21 Chimes Real Estate, 1991 WL 29950 [EDNY 1991], affd 970 F.2d 895). Accordingly, in August 1992, the claimant brought this claim to recover damages for alleged violations of his civil rights, fraud, and negligence. The Court of Claims granted the State's motion to dismiss the claim as untimely. We affirm, albeit in part for somewhat different reasons.

Pursuant to Court of Claims Act §10, "[n]o judgment shall be granted in favor of any claimant" for personal injuries due to negligence, unintentional tort, or intentional tort of a State employee, unless a claim is filed and served upon the Attorney-General within 90 days after the accrual of the claim, or the claimant, within 90 days after the accrual of the claim, serves upon the Attorney-General a written notice of intention to file a claim therefor, and thereafter files and serves the claim upon the Attorney-General within two years after the accrual of the claim (see, Conner v State of New York, 268 A.D.2d 706; Coleman v Webb, 158 A.D.2d 500). As a condition of the State's limited waiver of sovereign immunity, those requirements are strictly construed and a failure to comply therewith is a jurisdictional defect compelling the dismissal of the claim (see, Alston v State of New York, 281 A.D.2d 741; Crair v Brookdale Hosp. Med. Ctr., Cornell Univ., 259 A.D.2d 586, affd 94 N.Y.2d 524; Phillips v State of New York, 237 A.D.2d 590; Voulgarelis v State of New York, 211 A.D.2d 675).

The claimant's alleged damages were ascertainable, and hence his claim accrued in November 1989 at the latest (see, Baskerville v State of New York, 276 A.D.2d 418; Ro Jo Lo Partners v State of New York, 226 A.D.2d 896; Flushing Natl. Bank v State of New York, 210 A.D.2d 294; White Plains Parking Auth. v State of New York, 180 A.D.2d 729; Greenspan Bros. v State of New York, 122 A.D.2d 249). Inasmuch as the claimant's "notice of claim" was not filed until August 1992, his negligence and fraud claims are untimely and were properly dismissed.

To the extent that the claimant also...