New York State Court of Claims

New York State Court of Claims

BOTTOM v. THE STATE OF NEW YORK, #2000-004-507, Claim No. 101357, Motion Nos. M-60967, M-61126


Synopsis

State's motions to dismiss, granted

Case Information

UID:
2000-004-507
Claimant(s):
DEVIN BOTTOM
Claimant short name:
BOTTOM
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101357
Motion number(s):
M-60967, M-61126
Cross-motion number(s):

Judge:
JEROME F. HANIFIN
Claimant's attorney:
DEVIN BOTTOM, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER
ATTORNEY GENERAL
BY: James E. ShoemakerAssistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
May 9, 2000
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant makes two motions seeking the same relief, that is dismissal of the Claim on the ground that Claimant has failed to comply with the filing requirements set forth in Court of Claims Act §§10 and 11. The Court in its discretion has decided both motions together.

The following papers were considered by the Court:

Claim filed November 4, 1999 1

Notice of Motion No. M-60967, filed December 27, 1999 2


Affirmation of James E. Shoemaker, AAG, in support

of Motion No. M-60967, dated December 21, 1999, with
attached exhibit 3

Notice of Motion No. M-61126, filed January 28, 2000 4


Affirmation of James E. Shoemaker, AAG, in support of Motion
No. M-61126 dated January 25, 2000, with attached exhibits 5



The Claim arises from the alleged assault on the Claimant, while he was incarcerated at

Elmira Correctional Facility, by the employees and agents of the Defendant. (Paper No.1).


The Claim, which accrued on August 16, 1999 (Paper No.1, ¶ 3), alleges an intentional tort.




State's Counsel affirms that the Claim was filed on November 4, 1999 and served on the Attorney General by regular mail, on November 23, 1999, (Paper No. 3, ¶¶ 7,8).


Service by regular mail is improper under Court of Claims Act § 11 (a).


Section 11 [a] of the Court of Claims Act provides, in pertinent part:
The claim shall be filed with the clerk of the court; and...a copy shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for filing with the clerk of the court.

Claimant re-served the Claim on the Attorney General via certified mail, return receipt requested, on December 27, 1999 (Paper No. 5, ¶ 12), thus, precipitating Motion No. M-61126. (see, Paper No. 5, ¶¶ 11 and 12) Although in the proper form, this latter service was untimely.


Section 10 (3-b) of the New York State Court of Claims Act states, in pertinent part:
A claim to recover damages for injuries to property or for personal injuries caused by the intentional tort of an officer or employee of the state while acting as such officer or employee...shall be filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within one year after the accrual of such claim.

As the claim accrued on August 16, 1999 (and since no notice of intention was served), the December 27, 1999 service was more than 90 days after the date of accrual.


The Court must dismiss the Claim, since the Claim was (1) initially improperly served and then (2), on the second try, served late. The filing requirements in this Court are jurisdictional and, therefore, must be strictly construed (see, Byrne v State of New York, 104 AD2d 782, lv denied 64 NY2d 607). The State raised the objection in a motion to dismiss "before service of the responsive pleading [was] required" (see, Court of Claims Act § 11 [c]; Uniform Rules for the Court of Claims, 22 NYCRR § 206.7 [a]).


Claimant, though served, has failed to respond to the State's motion.


In light of the foregoing, it is

ORDERED that Motions No. M-60967 and M-61126 are GRANTED; and it is

ORDERED that Claim No. 101357 is DISMISSED.


May 9, 2000
Binghamton, New York

HON. JEROME F. HANIFIN
Judge of the Court of Claims