New York State Court of Claims

New York State Court of Claims

CAVIANO v. THE STATE OF NEW YORK, #2000-004-509, Claim No. 96683, Motion No. M-61035


Synopsis


State's motion to dismiss, granted.

Case Information

UID:
2000-004-509
Claimant(s):
SEAN CAVIANO
Claimant short name:
CAVIANO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
96683
Motion number(s):
M-61035
Cross-motion number(s):

Judge:
JEROME F. HANIFIN
Claimant's attorney:
SEAN CAVIANO, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER
ATTORNEY-GENERAL
BY: Earl F. Gialanella, Assistant Attorney-Generalof counsel
Third-party defendant's attorney:

Signature date:
May 10, 2000
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The State moves to dismiss the Claim.


The following papers were considered by the Court:

Claim, filed July 28, 1997 1

Verified Answer, filed August 28, 1997 2

Notice of Motion, filed January 11, 2000 3

Affirmation of Earl F. Gialanella, AAG, in support of motion,
dated January 6, 2000, with attached exhibits 4



The Claim is for the alleged negligence of employees in the Elmira Correctional Facility in allowing items to be stolen from Claimant's cell on November 27, 1996. (Paper No. 1)


State's counsel affirms, in pertinent part:
3. The notice of intention to file a claim was served upon the Office of the Attorney General on February 27, 1997. It alleges that on November 27, 1996, while the claimant was incarcerated at the Elmira Correctional Facility, his cell was entered by unknown persons and various pieces of property were stolen. The notice of intention to file a claim served on the Office of the Attorney General, and the envelope it was mailed in, are attached as Exhibit A.

4. The claim was served on the Office of the Attorney General on July 25, 1997. It alleges essentially the same facts....

5. On August 25, 1997, the defendant filed and served its verified answer to the claim. A copy of the verified answer is attached as Exhibit C. In the verified answer's fifth and sixth affirmative defenses, the defendant asserted with particularity the claim's untimely filing in that the notice of intention to file a claim was served in excess of 90 days after accrual of the claim.

6. ....Under the Court of Claims Act § 10(3), in a claim to recover damages for the alleged negligence of the defendant, a notice of intention to file a claim or a claim must be served on the Office of the Attorney General within 90 days of the claim's accrual. If a notice of intention to file a claim is timely served, the claimant's time to file and serve a claim is extended until two (2) years after the claim's accrual....The notice of intention to file a claim was served on the Office of the Attorney General on February 27, 1997, or 92 days following the accrual of the claim. As such, and as asserted in the defendant's verified answer's sixth affirmative defense, the service of the notice of intention to file a claim in excess of 90 days from the claim's accrual did not extend the claimant's time to file and serve a claim pursuant to the Court of Claims Act § 10(3). Therefore, the claim served in July of 1997 was untimely.

7. The filing and service requirements of the Court of Claims Act are non-waivable, jurisdictional in nature, and must be strictly construed. Greenspan Bros. v. State of New York, 122 AD2d 249; Byrne v. State of New York, 104 AD2d 782, lv. denied 64 NY2d 607. The untimely service of the notice of intention to file a claim, and consequently the claim, mandate the claim's dismissal.

(Paper No 4)


Although served, Claimant makes no response to this motion.


State's counsel's points are well taken. A claim accrues for purposes of the Court of Claims Act when damages are reasonably ascertainable (see, Flushing National Bank v State of New York, 210 AD2d 294, app denied 86 NY2d 706). It is clear that this claim accrued on November 27, 1996, and as such, the service of the Notice of Intention was untimely.


The Court must dismiss the Claim. The filing and service requirements of the Court of Claims Act are jurisdictional and, therefore, must be strictly construed (see Greenspan Bros. v State of New York, 122 AD2d 249; Byrne v State of New York, 104 AD2d 782 lv denied 64 NY2d 607). Defendant raised the "objection" with particularity in its Verified Answer as required (Paper No. 2) (see, Court of Claims Act § 11 [c]; Uniform Rules for the Court of Claims, 22 NYCRR § 206.7 [a]).


In light of the foregoing, it is


ORDERED that the State's Motion No. M-61035 is GRANTED, and Claim No. 96683 is dismissed.


May 10, 2000
Binghamton, New York

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