DREGER v. NEW YORK STATE THRUWAY AUTH.
81 N.Y.2d 721 (1992)
Walter Dreger et al., Appellants, v. New York State Thruway Authority, Respondent. Patricia Charbonneau, as Administratrix of The Estate of Roland Charbonneau, Deceased, Appellant, v. State of New York, Respondent. Janet Dalton, as Administratrix of The Estate of Jackson C. Dalton, Deceased, Appellant, v. State of New York, Respondent.
Court of Appeals of the State of New York.
Decided December 16, 1992.
Lewis & Stanzione, Catskill (
Ralph C. Lewis, Jr., of counsel), for Walter Dreger and another, appellants in the first above-entitled action.
Saperston & Day, P. C., Buffalo (
Thomas F. Segalla and Peter L. Powers of counsel), for Patricia Charbonneau and another, appellants in the second and third above-entitled actions.
Robert Abrams, Attorney-General, Albany ( Michael S. Buskus, Jerry Boone and Peter H. Schiff of counsel), for New York State Thruway Authority and another, respondents in the first, second and third above-entitled actions.
Acting Chief Judge SIMONS and Judges TITONE, HANCOCK, JR., and SMITH concur; Judge KAYE dissents and votes to reverse in an opinion in which Judge BELLACOSA concurs.
The order of the Appellate Division in each case should be affirmed, with costs.
In each of these actions a claim against the State or the Thruway Authority was dismissed for failure to serve a copy of the claim on the Attorney-General in the manner prescribed by Court of Claims Act § 11. In Dreger, the claimant
The Court of Claims Act contains no recommencement provision of its own, but section 10 (6) expressly incorporates the time limitations and tolling provisions of CPLR article 2, and section 9 (9) requires that Court of Claims practice follow Supreme Court practice, unless other provisions are expressly made. Thus, these actions may be recommenced if they qualify for recommencement under CPLR 205 (a). Claimants rely on our decision in Finnerty v New York State Thruway Auth. (
Resolution of these cases does not turn on whether proper service on the Attorney-General is characterized as a matter of subject matter jurisdiction, personal jurisdiction or a condition precedent. CPLR 205 (a) allows recommencement only where the prior action was "timely commenced." Accordingly, we look not to the characterization of the grounds for dismissal, but to the narrow question of what constitutes timely commencement. We have consistently held that, for purposes of CPLR 205 (a) actions prior to the 1992 CPLR amendments (see, L 1992, ch 216, §§ 2, 4), timely commencement requires literal compliance with the relevant statutes governing notice
Court of Claims Act § 11 establishes a notice requirement in addition to that which may be applicable under other statutes: serving a copy of the claim or notice of intention on the Attorney-General, either personally or by certified mail with a return receipt requested (see, MacFarland-Breakell Bldg. Corp. v New York State Thruway Auth.,
As this Court has long recognized, a CPLR 205 (a) request to recommence a dismissed action must be liberally viewed: "[t]he statute is designed to insure to the diligent suitor the right to a hearing in court till he reaches a judgment on the merits. Its broad and liberal purpose is not to be frittered away by any narrow construction" (Gaines v City of New York, 215 N.Y. 533, 539 [Cardozo, J.]). Today's decision ignores that mandate.
CPLR 205 (a) allows recommencement of "timely commenced" actions that are later dismissed. As an action brought under the CPLR prior to July 1, 1992 could only be "commenced * * * by service of a summons" (CPLR 304), a defect in service meant the action had never been commenced and therefore could not be recommenced under CPLR 205 (a) (see, e.g., Markoff v South Nassau Community Hosp.,
The Court of Claims Act has no analogue to CPLR 304. Nor does Court of Claims Act § 10 (6) — which allows claimants to seek to file their claim "at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules" — incorporate the CPLR definition of commencement of an action, found in article 3. Thus, in contrast to the CPLR, the Court of Claims Act does not specify when an action is "commenced."
Indeed, nothing compels the Court to conclude that because filing and service on the Attorney-General are conditions for bringing a suit in the Court of Claims, both are necessary to "timely commence" an action for the purposes of CPLR 205 (a). Absent such a requirement, we should refrain from "fritter[ing] away" the broad and liberal purpose of CPLR 205 (a). In keeping with the ameliorative reach of CPLR 205 (a), it would better serve the purposes of that section to treat an action in the Court of Claims as commenced upon filing, and service on the Attorney-General as simply a necessary condition for subject matter jurisdiction (see, Finnerty v New York State Thruway Auth.,
In the CPLR, the Legislature chose to prescribe when an action is commenced, and those requirements must be literally satisfied before relief can be allowed under CPLR 205 (a). The Legislature may well choose a parallel course for the Court of Claims Act. Unless and until it does so, however, this Court should not itself impose requirements that deny plaintiffs the intended benefit of CPLR 205 (a).
We respectfully dissent.
In each case: Order affirmed, with costs, in a memorandum.
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