PRISCO v. STATE (2009)

Supreme Court, Appellate Division, Second Department, New York.

Dino PRISCO, appellant, v. STATE of New York, respondent.

Decided: May 26, 2009

A. GAIL PRUDENTI, P.J., HOWARD MILLER, RANDALL T. ENG, and ARIEL E. BELEN, JJ. Robinson Brog Leinwand Greene Genovese & Gluck P.C., New York, N.Y. (John D. D'Ercole and Roger A. Raimond of counsel), for appellant. Andrew M. Cuomo, Attorney General, New York, N.Y. (Peter H. Schiff and Michael S. Buskus of counsel), for respondent.

In a claim, inter alia, to recover damages for injury to property, the claimant appeals from an order of the Court of Claims (Ruderman, J.), dated April 8, 2008, which granted the defendant's motion to dismiss the claim pursuant to Court of Claims Act §§ 10 and 11.

ORDERED that the order is affirmed, with costs.

 The Court of Claims properly granted that branch of the defendant's motion which was to dismiss the claim as untimely.   For purposes of the Court of Claims Act, a claim accrues when damages are reasonably ascertainable (see Local 851 of Intl. Bhd. of Teamsters v. State of New York, 36 A.D.3d 672, 673, 828 N.Y.S.2d 200;  Kaufman v. State of New York, 18 A.D.3d 503, 795 N.Y.S.2d 280;  Flushing Natl. Bank v. State of New York, 210 A.D.2d 294, 621 N.Y.S.2d 83;  White Plains Parking Auth. v. State of New York, 180 A.D.2d 729, 730, 580 N.Y.S.2d 68).   Here, the claimant's damages were reasonably ascertainable on or before March 10, 2000.   Since the notice of intention to file a claim was not filed until eight months later, in mid-November 2000, the claim was untimely (see Kaufman v. State of New York, 18 A.D.3d at 503, 795 N.Y.S.2d 280;  Chartrand v. State of New York, 46 A.D.2d 942, 362 N.Y.S.2d 237).  “The failure to comply with the filing deadlines set forth in Court of Claims Act § 10 is a jurisdictional defect which compels the dismissal of the claim[s]” (Local 851 of Intl. Bhd. of Teamsters v. State of New York, 36 A.D.3d at 673, 828 N.Y.S.2d 200).   Contrary to the claimant's contention, the limitations period was not extended by the continuing violation doctrine (see Kaufman v. State of New York, 18 A.D.3d at 503-504, 795 N.Y.S.2d 280;  Selkirk v. State of New York, 249 A.D.2d 818, 819, 671 N.Y.S.2d 824).

 In any event, the Court of Claims also properly determined that the claimant's notice of intention to file a claim failed to comply with Court of Claims Act § 11(b).  Since the statutory requirements of the Court of Claims Act must be strictly construed (see Thomas v. State of New York, 57 A.D.3d 969, 970, 871 N.Y.S.2d 333;  Triani v. State of New York, 44 A.D.3d 1032, 1032-1033, 845 N.Y.S.2d 81), the failure of the claimant to set forth in the notice of intention to file a claim the time when the claim arose constituted a jurisdictional defect mandating dismissal (see Czynski v. State of New York, 53 A.D.3d 881, 883-884, 861 N.Y.S.2d 845;  Robin BB. v. State of New York, 56 A.D.3d 932, 933, 867 N.Y.S.2d 284).

The claimant's remaining contentions either are without merit or have been rendered academic by our determination.