Finnerty v. New York State Thruway Authority
Shimmerlik v. City University of New York
(See, Jones v City Univ., 57 N.Y.2d 984.) Moreover, when an entity other than the State is a proper defendant…
The State then moved to dismiss for failure to make service upon the Attorney-General as required by Court of…
Full title:JAMES M. FINNERTY, Respondent, v. NEW YORK STATE THRUWAY AUTHORITY…
Court:Appellate Division of the Supreme Court of New York, Fourth Department
140 A.D.2d 941 (N.Y. App. Div. 1988)
Appellate Division of the Supreme Court of New York, Fourth Department
Appeal from the Court of Claims, Hanifin, J.
Present — Doerr, J.P., Denman, Green, Lawton and Davis, JJ.
Order unanimously reversed on the law without costs and motion granted. Memorandum: Plaintiff commenced this action against the Thruway Authority in the Court of Claims by serving the claim on the Thruway Authority and filing two copies of it with the clerk of the court. Plaintiff neglected to serve the claim upon the Attorney-General and the clerk did not deliver a copy to the Attorney-General. Subsequently, the Attorney-General moved on behalf of the Thruway Authority to dismiss the claim for failure to serve the Attorney-General. The court denied the motion, holding that service on the Attorney-General was unnecessary to give the Court of Claims jurisdiction over the Thruway Authority. We reverse and dismiss the claim.
As it read when this claim was instituted, Court of Claims Act § 11 provided, in pertinent part: "The claim or notice of intention shall be filed with the clerk of the court and a copy shall be served upon the attorney-general within the times hereinbefore provided for filing with the clerk of the court." In cases involving claims against the State itself, it has been uniformly held that failure to serve the Attorney-General pursuant to Court of Claims Act § 11 divests the court of jurisdiction over the State (see, e.g., Jackson v State of New York, 85 A.D.2d 818, lv dismissed 56 N.Y.2d 568; Matter of Welch v State of New York, 71 A.D.2d 494, 498, lv denied 50 N.Y.2d 802; Andriola v State of New York, 53 A.D.2d 966, 967-968). We read section 11 as a manner of service provision and hold that, pursuant to its terms, service on the Attorney-General is a predicate to obtaining personal jurisdiction over any defendant in the Court of Claims, including a defendant other than the State. Public Authorities Law § 361-b supports the conclusion that service pursuant to section 11 is required in order to sue the Thruway Authority. That statute authorizes the Court of Claims to hear claims against the Thruway Authority "in the same manner and to the extent provided by and subject to the provisions of the court of claims act with respect to claims against the State". Several cases also support that interpretation. In Brinkley v City Univ. ( 92 A.D.2d 805, 806), for example, the First Department held that " [i]n addition to the usual service and filing requirements imposed by the Court of Claims Act, in any claim brought against it, CUNY must also be served" (emphasis supplied; see also, Jones v City Univ., 57 N.Y.2d 984, 987-988).
Bonaventure v New York State Thruway Auth. ( 108 A.D.2d 1002), relied upon by the trial court, is distinguishable. That case merely holds that service on the Attorney-General alone is insufficient to obtain jurisdiction over the Thruway Authority, not that such service is unnecessary to obtain jurisdiction over the Authority in the Court of Claims (Bonaventure v New York State Thruway Auth., supra, at 1003; see also, MacFarland-Breakell Bldg. Corp. v New York State Thruway Auth., 123 Misc.2d 307, 308, affd 104 A.D.2d 139; Bicjan v Hunter Coll., 116 Misc.2d 978, 980).
Matter of Krales v City Univ. ( 128 Misc.2d 168), also relied upon by the trial court, is on point but is unpersuasive. That decision misapplies Bonaventure (supra) and ignores Education Law § 6224 (4), which makes claims against CUNY subject to the Court of Claims Act, and Court of Claims Act § 11, which clearly requires service on the Attorney-General in order to commence an action in the Court of Claims. Contrary to the court's statement in Krales (supra, at 169), Court of Claims Act § 11 does not limit the requirement of service upon the Attorney-General to those cases in which the State is the named defendant.