Flushing National Bank v. State

Dec 12, 1994
Versions:210 A.D.2d 294
621 N.Y.S.2d 83
1994 N.Y. App. Div. LEXIS 12588

—In а claim for damages arising from negligence, the claimant appeals from a judgment of the Court of Claims (Silverman, J.), dated January 7, 1993, which dismissed its claim.

Ordered that the judgment is affirmed, with costs.

We conclude that the Court of Claims рroperly granted the State’s motion to dismiss because of the claimant’s failure to file a timely claim. The time in which a claim or a notice of intent to file a claim must be filed against the State for the kind of injury at bar is 90 days from the date the claim accrued (see, Court of Claims Act § 10 [3]). A сlaim accrues for purposes of the ‍‌​‌​​‌​​‌​‌‌​‌‌‌​​​​‌‌‌‌‌‌‌‌‌‌‌​​‌​‌‌​‌‌​​‌‌​‌​‌‍Court of Claims Act when damages are reasonably ascertainable (see, White Plains Parking Auth. v State of New York, 180 AD2d 729; Greenspan Bros. v State of New York, 122 AD2d 249; Acme Bldrs. v County of Nassau, 36 AD2d 317, affd 31 NY2d 924; Bronxville Palmer v State of New York, 36 AD2d 647; Waterman v State of New York, 19 AD2d 264, affd 14 NY2d 793).

Under the most generous reading of the facts in this case, damages were readily ascertainable on or before November 30, 1990, more than 90 days prior .tо the filing of the claimant’s claim oji March 6, 1991.

We conclude further that, the State did not waive, its defense based upon the claimant’s failure to file a timely claim. We find that the State’s answеr raises the defense with sufficient particularity as required by Court of Claims Act § 11 (c). The remaining issues rаised on appeal need not be addressed. Ritter, J. P., Santucci, Altman and Goldstein, JJ., concur.

Pizzuto, J., concurs in the result, with the following memorandum: The claimant has brought this action against the ‍‌​‌​​‌​​‌​‌‌​‌‌‌​​​​‌‌‌‌‌‌‌‌‌‌‌​​‌​‌‌​‌‌​​‌‌​‌​‌‍Stаte to recover damages allegedly incurred when the Suffolk County Clerk, in this case acting аs a State Officer (see, National Westminster Bank v State of New York, 76 NY2d 507), failed to properly record an order dated February 25, 1986, which had еxtended the claimant’s judgment lien against the real property of a nonparty judgment debtor. While I agree with the result reached by my colleagues in the majority, I am compelled to concur in this manner because I *295believe the claimant’s argument regarding the application of a discovery accrual rule needs to be squarely addressed.

The facts in this matter are not in dispute. The County Clerk’s omission occurred on May 1, 1986, and the subject real prоperty was conveyed to a bona fide purchaser, free and clear from the сlaimant’s encumbrance, on October 12, 1989. On or before November 30, 1990, an attorney for the сlaimant became aware of the transfer of title which had taken place on Oсtober 12, 1989. On December 6, 1990, ‍‌​‌​​‌​​‌​‌‌​‌‌‌​​​​‌‌‌‌‌‌‌‌‌‌‌​​‌​‌‌​‌‌​​‌‌​‌​‌‍the attorney went to the County Clerk’s Office to examine the judgment roll. On thаt date the attorney discovered there was no notation on the docket books рertaining to the order dated February 25, 1986, and he brought this omission to the attention of the Clerk’s Officе. On December 7, 1990, the Clerk’s Office entered a notation of the February 25, 1986, order on the judgment dоcket.

The claimant has alleged that the omission of the County Clerk constituted negligencе which resulted in the sale of the property free and clear of the claimant’s enсumbrance. In its answer, the State raised as an affirmative defense the untimeliness of the clаim and, contrary to the claimant’s contention, did so with the requisite particularity (see, Court of Claims Act § 11 [c]; Charbonneau v State of New York, 148 Misc 2d 891, affd 178 AD2d 815, affd 81 NY2d 721). The State’s subsequent motion to dismiss pursuant to Court of Claims Act § 10 (3), for failure to file the claim within 90 days of its accrual, was granted by the Court of Claims in the order appealed from. In so holding, the Supreme Court sрecifically concluded that the claim accrued on October 12, 1989, when the subject property was conveyed to a bona fide purchaser free and clear of thе claimant’s encumbrance. I wholly agree with the Supreme Court’s conclusion becausе it was on October 12, 1989, that the claimant’s damages, the benchmark of which was the amount of its lien, became reasonably ascertainable.

More importantly, I specifically rеject the claimant’s assertion that the claim did not accrue until its discovery of the failurе of the Clerk’s Office to note ‍‌​‌​​‌​​‌​‌‌​‌‌‌​​​​‌‌‌‌‌‌‌‌‌‌‌​​‌​‌‌​‌‌​​‌‌​‌​‌‍the order dated February 25, 1986, on the judgment docket. A discovery accrual rule applies in very few instances, and then pursuant to statutory mandate (see, e.g., CPLR 213 [8]; 214-a; 214-b; 214-c). Indeed, when faced with an issue of this nature, the Court of Appeals has consistently refused tо extend the discovery rule beyond the limited instances provided by the Legislature (see, e.g., Matter of Steinhardt v Johns-Manville Corp., 54 NY2d 1008, *2961011, cert denied 456 US 967; Schwartz v Heyden Newport Chem. Corp., 12 NY2d 212). In deciding thesе cases, the Court of Appeals has clearly taken the position that it is "inappropriate and injudicious to intrude into an area best suited for legislative scrutiny” (Matter of Steinhardt v Johns-Manville Corp., supra, at 1008, 1011; see also, Schwartz v Heyden Newport Chem. Corp., supra). Therefore, in thе absence of a statutory mandate, there exists no basis for an expansion of the discovery accrual rule so as to , render it applicable ‍‌​‌​​‌​​‌​‌‌​‌‌‌​​​​‌‌‌‌‌‌‌‌‌‌‌​​‌​‌‌​‌‌​​‌‌​‌​‌‍to claims alleging the nеgligence of State employees in performing ministerial acts associated with the processing or filing of documents (see, e.g., Johnson v State of New York, 131 Misc 2d 630, 633; Di Maio v State of New York, 128 Misc 2d 101, 102). [See, 156 Misc 2d 979.]