| Langner v State of New York |
| 2009 NY Slip Op 06211 [65 AD3d 780] |
| August 13, 2009 |
| Appellate Division, Third Department |
| Jeremy Marc Langner, Individually and as Proposed Administratorof the Estate of Alfred B. Langner, Deceased, et al., Appellants, v State of New York,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Michael S. Buskus of counsel), forrespondent.
Peters, J.P. Appeal from an order of the Court of Claims (Collins, J.), entered May 16, 2008,which, among other things, granted defendant's motion to dismiss the claim.
This action arises from a January 25, 2007 one-car accident on Interstate 87 in the Town ofNorth Hudson, Essex County. Decedent was driving with his wife, claimant Barbara Langner(hereinafter Langner), when their car left the roadway and became trapped in a snow-filledembankment. According to the proposed claim, both Langner and decedent suffered severeinjuries as a result of the accident and, unable to summon help because cellular phone servicewas not available, decedent succumbed to hypothermia.
In April 2007, claimants served defendant with three notices of intention to file a claim, twonaming Langner as claimant and the other naming decedent's son, Jeremy Marc Langner, asclaimant in both his individual capacity and as the proposed executor of decedent's estate.Subsequently, in November 2007, claimants served a claim alleging various causes of action for,among other things, wrongful death and personal injuries to both decedent and Langner. [*2]Defendant then moved to dismiss the claim and claimantscross-moved to amend their notices of intention and/or for leave to file a late claim.[FN1]The Court of Claims granted defendant's motion to dismiss the claim and denied claimants' crossmotion, prompting this appeal.
We find that the Court of Claims properly dismissed claimants' November 2007 claim.Pursuant to Court of Claims Act § 10 (3), a claim to recover for personal injuries must befiled and served within 90 days of the accrual of the claim, unless the claimant files a notice ofintention to file a claim within that same time period. Further, Court of Claims Act § 11(b) requires that a claim, or a notice of intention, set forth, among other things, "the time whenand place where such claim arose, the nature of same [and] the items of damage or injuriesclaimed to have been sustained" (seeHogan v State of New York, 59 AD3d 754, 754 [2009]; Lepkowski v State of NewYork, 302 AD2d 765, 766 [2003], affd 1 NY3d 201 [2003]). Because claims againstdefendant are allowed only by virtue of its waiver of sovereign immunity, the failure to strictlycomply with the filing or service provisions of the Court of Claims Act divests the court ofsubject matter jurisdiction (seeKolnacki v State of New York, 8 NY3d 277, 280-281 [2007]; Bush v State of New York, 60 AD3d1244, 1245 [2009]; Tooks v Stateof New York, 40 AD3d 1347, 1348 [2007], lv denied 9 NY3d 814 [2007]).
Here, the two notices of intention to file a claim that were served on April 25, 2007 failed toname defendant as a party, much less provide any indication of the manner in which it wasnegligent. As such, we find that the Court of Claims properly found those notices of intentiondeficient and, thus, they did not serve to extend claimants' time for the filing of their claims (see Czynski v State of New York, 53AD3d 881, 883 [2008], lv denied 11 NY3d 715 [2009]; Cendales v State of New York, 2AD3d 1165, 1167 [2003]). Furthermore, as claimants filed their April 30, 2007 notice ofintention beyond the 90-day limitations period, it, too, was insufficient to extend claimants' timeto submit a claim (see Court of Claims Act § 10 [3]; Matter of Magee v State of New York,54 AD3d 1117, 1118 [2008]; Rivera v State of New York, 5 AD3d 881, 881 [2004]).
Turning to the November 2007 claim itself, inasmuch as no valid notice of intention to file aclaim was submitted within the 90-day statutory period, the Court of Claims was correct inruling that such claim, filed almost 10 months after the accident, was untimely for all causes ofaction with respect to Langner (see Court of Claims Act § 10 [3]; Ferrugia vState of New York, 237 AD2d 858, 859 n 1 [1997]). Additionally, we find that the causes ofaction brought on behalf of decedent in the November 2007 claim, including wrongful death andpersonal injury, were also untimely. Court of Claims Act § 10 (2) requires that, absent avalid written notice of intention to file a claim, a wrongful death action alleging negligenceagainst defendant "shall be filed and served upon the attorney general within [90] days after theappointment of [the] executor or administrator" (see Lichtenstein v State of New York,93 NY2d 911, 913 [1999]; see [*3]also Thomas v State of New York, 57 AD3d 969, 970[2008]).[FN2]Thus, here, where service of the November 2007 claim was effected on both the Court of Claimsand the Attorney General more than two weeks before Jeremy Marc Langner was appointed asthe executor of the estate, and there being no valid and timely notice of intention to file a claimserved, we find that the court properly dismissed the "survival" causes of action on behalf ofdecedent as untimely (Lichtenstein v State of New York, 93 NY2d at 913).
We turn, finally, to claimants' contention that the Court of Claims erred in denying theircross motion to file a late notice of claim. The decision whether to grant or deny an applicationto file a late claim " 'lies within the broad discretion of the Court of Claims and should not bedisturbed absent a clear abuse of that discretion' " (Matter of Magee v State of NewYork, 54 AD3d at 1118, quoting Matter of Soble v State of New York, 189 AD2d970, 970 [1993]; see Matter of Best vState of New York, 42 AD3d 699, 700 [2007]). In making its determination, the court isrequired to consider the statutory factors enumerated in Court of Claims Act § 10 (6), andthis Court has consistently declined to disturb the denial of an application where there is aninadequate excuse offered for the delay and the proposed claim is of questionable merit (seee.g. Matter of Magee v State of New York, 54 AD3d at 1118; Matter of Brown v State of New York,52 AD3d 1136, 1136 [2008]; Matter of Robinson v State of New York, 35 AD3d 948, 949-950[2006]).
Here, claimants' excuse for not meeting the statutory deadlines for filing was inadequate,inasmuch as they have admitted it was due to law office failure (see e.g. Matter of Magee vState of New York, 54 AD3d at 1118; Matter of Bonaventure v New York StateThruway Auth., 114 AD2d 674, 674-675 [1985], affd 67 NY2d 811 [1986]). Whiledefendant admits no prejudice would accrue by virtue of the late filing, we find, nonetheless, thatthe Court of Claims did not err in determining that claimants failed to demonstrate the potentialmerit of their claim. Claimants' theory of negligence is premised upon allegations of improperdesign and construction of the roadway which resulted in a dangerous condition, failure tomaintain adequate signage and failure to prevent the accumulation of snow and ice on the road.However, claimants proffered no evidence regarding the manner in which the accident occurredor any evidence that tended to substantiate the alleged design, construction or signage defects(see Witko v State of New York, 212 AD2d 889, 891 [1995]; Sevillia v State of NewYork, 91 AD2d 792 [1982]; see also Pagano v New York State Thruway Auth., 235AD2d 409 [1997]; see generally Matter of Robinson v State of New York, 35 AD3d at949-950). Nor have claimants proffered any evidence as to the extent to which snow and ice waspresent on the road or whether defendant had actual or constructive notice of such conditions andfailed to correct or warn motorists of it (see Hart v State of New York, 43 AD3d 524, 525 [2007];Calco v State of New York, 165 AD2d 117, 119-120 [1991], lv denied 78 NY2d852 [1991]). Thus, we agree that the conclusory [*4]allegationsin the claim were not enough to establish a meritorious cause of action and, as such, we declineto disturb the decision of the Court of Claims to deny permission to file a late claim.[FN3]
We have considered claimants' remaining contentions and find them to be without merit.
Rose, Lahtinen, Stein and McCarthy, JJ., concur. Ordered that the order is affirmed, withoutcosts.
Footnote 1: During the course of motionpractice, in January 2008, Jeremy Marc Langner, as executor of decedent's estate, filed a noticeof intention to file a claim for both wrongful death and decedent's personal injuries. The recordsuggests, and defendant concedes, that this notice was timely.
Footnote 2: While Court of Claims Act§ 10 is silent about the timing for the filing and service of a claim by an executor oradministrator for causes of action other than wrongful death brought on behalf of a decedent, ithas been held that all "survival" claims are subject to the service and filing requirementscontained in section 10 (2) (Lichtenstein v State of New York, 93 NY2d at 912-913;see Tooks v State of New York, 40 AD3d at 1348; see also Thomas v State of NewYork, 57 AD3d at 970).
Footnote 3: The fact that decedent's estatemay still file a claim for wrongful death and personal injury to decedent by virtue of the January2008 notice of intention to file a claim is another factor that, while apparently not considered bythe Court of Claims, supports its determination in this regard.