Baysah v. State of New York ( 2015 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: December 17, 2015 517887
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WILLIAM S. BAYSAH,
Appellant,
v MEMORANDUM AND ORDER
STATE OF NEW YORK,
Respondent.
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Calendar Date: October 15, 2015
Before: Garry, J.P., Egan Jr., Rose and Clark, JJ.
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William S. Baysah, Hartford, Connecticut, appellant
pro se.
Eric T. Schneiderman, Attorney General, Albany (Zainab
Chaudhry of counsel), for respondent.
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Egan Jr., J.
Appeal from an order of the Court of Claims (Collins, J.),
entered August 19, 2014, which granted defendant's motion to
dismiss the claim.
According to claimant, he improperly (and unknowingly) was
issued a traffic ticket in New York City in 1994. When he failed
to pay this ticket or otherwise resolve the charge against him, a
default conviction was entered, as a result of which claimant
allegedly lost his driving privileges – and his job – in Florida
in 2011. Upon claimant's application, the Department of Motor
Vehicles vacated the conviction in July 2012 and dismissed the
underlying charge. Thereafter, on September 20, 2012, claimant
served his claim upon the Attorney General's office – alleging
negligence in defendant's handling of the underlying traffic
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infraction. Defendant apparently moved to dismiss the claim but,
as the claim had not been filed with the Court of Claims, the
motion was held in abeyance. When claimant filed his claim with
the Court of Claims on May 13, 2013, defendant withdrew the prior
motion and again moved to dismiss the claim contending, among
other things, that the claim was untimely. The Court of Claims
granted defendant's motion, and this appeal by claimant ensued.
We affirm. A claimant seeking to recover damages for
personal injuries caused by the negligence of an officer or
employee of defendant has two options: (1) file and serve a claim
upon the Attorney General within 90 days after the accrual
thereof, or (2) within such time period, serve upon the Attorney
General a written notice of intention to file a claim, in which
case the claim must be filed and served upon the Attorney General
within two years after the accrual thereof (see Court of Claims
Act §§ 10 [3]; 11 [a] [i]; Burks v State of New York, 119 AD3d
1302, 1303 [2014]). Where, as here, a claimant elects to
commence his or her action by the filing and service of a claim
upon the Attorney General, such claim also must be filed with the
Clerk of the Court within the 90-day period (see Court of Claims
Act § 11 [a] [i]; Tooks v State of New York, 40 AD3d 1347, 1348
[2007], lv denied 9 NY3d 814 [2007]). Inasmuch "as suits against
defendant are permitted only by virtue of its waiver of sovereign
immunity and are in derogation of the common law, the failure to
strictly comply with the filing or service provisions of the
Court of Claims Act divests the court of subject matter
jurisdiction and compels dismissal of the claim" (Caci v State of
New York, 107 AD3d 1121, 1122 [2013] [internal quotation marks
and citations omitted]; see Encarnacion v State of New York, 112
AD3d 1003, 1004 [2013]; see also Robinson v State of New York, 38
AD3d 1030, 1030 [2007]).
Even if we were to accept claimant's premise that his claim
did not actually accrue until his conviction was vacated on July
20, 2012 (a contention belied by the facts set forth in the claim
itself), claimant nonetheless was required to satisfy the
statutory filing and service requirements within 90 days thereof.
Although claimant indeed filed and served his claim upon the
Attorney General on September 20, 2012 (within the 90-day
period), he did not file his claim with the Court of Claims until
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May 13, 2013 – well beyond the statutory period. Thus,
claimant's failure to comply with the statutory requirements
deprived the Court of Claims of subject matter jurisdiction and
compelled dismissal of his claim (see Maude V. v New York State
Off. of Children & Family Servs., 82 AD3d 1468, 1469-1470
[2011]).
Garry, J.P., Rose and Clark, JJ., concur.
ORDERED that the order is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court