81 N.Y.2d 721, 609 N.E.2d 111, 593 N.Y.S.2d 758 (1992).
December 16, 1992

3 No. 234

3 No. 235

Decided December 16, 1992

This memorandum is uncorrected and subject to revision before publication in the New York Reports.

No. 234:

Ralph C. Lewis, Jr., for Appellants.
Michael S. Buskus, for Respondent.

No. 235:

Thomas F. Segalla, for Appellants.
Michael S. Buskus, for Respondent.


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 served the Thruway Authority but neglected to serve the Attorney General. In Charbonneau and Dalton, copies of the claims were mailed to the Attorney General but were not sent by certified mail as the statute requires. Because of these failures, the actions were subsequently dismissed and are now time-barred. Pursuant to Court of Claims Act § 10(6) and CPLR 205(a), however, a party whose "timely commenced" action has been dismissed and is now time-barred may apply to the court for permission to recommence the action, provided the action was not dismissed for failure to prosecute or under other circumstances not relevant here. The question on appeal is whether these claimants failed to meet the statutory timely commencement requirement because of their failure to serve the Attorney General properly.

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 article 2 of the CPLR, 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. (75 NY2d 721), where we held that the requirement of service on the Attorney General could not be waived by the State because it implicated subject matter jurisdiction. They contend that it has long been the rule that recommencement under CPLR 205(a) or its predecessor is possible when a lack of subject matter jurisdiction was the basis for the dismissal of the prior action (George v Mt. Sinai Hospital, 47 NY2d 170; Gaines v City of New York, 215 NY 533). Inasmuch as Finnerty stated that failure to serve the Attorney General resulted in a loss of subject matter jurisdiction, they contend they are entitled to seek recommencement of their actions.

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 215, § 4), timely commencement requires literal compliance with the relevant statutes governing notice (Parker v Mack, 61 NY2d 114, 117; Markoff v South Nassau Community Hospital, 61 NY2d 283, 288; see, CPLR 304 et seq).

Court of Claims Act, section 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 (see, MacFarland-Breakell Bldg. Corp. v New York State Thruway Authority (123 Misc2d 307, affirmed 104 AD2d 139 [governmental entity separate from State must be served in addition to attorney general]). Under section 11, both filing with the court and service on the Attorney General must occur within the applicable limitations period, and there is no basis for believing that the Legislature intended filing to independently constitute commencement. Because suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed (Lurie v State, 73 AD2d 1006, affd, 52 NY2d 849). Accordingly, where, as here, claimants have not met the literal requirements of Court of Claims Act § 11, their actions are not timely commenced, and relief under CPLR 205(a) is not available.

KAYE, J. (dissenting):

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 NY 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 205(a) (see, e.g., Markoff v South Nassau Community Hosp, 61 NY2d 283). This result, compelled by the explicit language of CPLR 304, constitutes a limited exception to the broad sweep of CPLR 205(a). CPLR 205(a) does not, however, require "literal compliance with the relevant statutes governing notice" (maj mem, p. 3) but rather, only requires compliance with the statutes specifically governing commencement. To require anything more would abrogate the utility of CPLR 205(a) as a remedial savings statute.

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 commencment of an action, found in article three. 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, 75 NY2d 721, 723). While failure to satisfy the service requirements will provide a basis for dismissal, such dismissal should not deprive claimants of the opportunity to renew the actions pursuant to CPLR 205(a).

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.

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No. 234 & No. 235: Order affirmed, with costs, in a memorandum. Acting Chief Judge Simons and Judges Titone, Hancock and Smith concur. Judge Kaye dissents and votes to reverse in an opinion in which Judge Bellacosa concurs.