New York State Court of Claims

New York State Court of Claims

SHOBEY v. THE STATE OF NEW YORK, #2000-005-559, Claim No. 98052, Motion Nos. M-62233, CM-62371


Synopsis


The claim is dismissed for untimely service, and the trial canceld. The motion for permission to file a late claim is adjourned.

Case Information

UID:
2000-005-559
Claimant(s):
ANDRE SHOBEY
Claimant short name:
SHOBEY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
98052
Motion number(s):
M-62233
Cross-motion number(s):
CM-62371
Judge:
Donald J. Corbett, Jr.
Claimant's attorney:
Andre ShobeyPro Se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Carla T. Rutigliano, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 20, 2000
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

On September 20, 2000, the following papers, numbered 1 to 5, were read on motion by Defendant for dismissal of the claim and on cross-motion by Claimant for permission to file a late claim:

1, 2 Notice of Motion, Affirmation and Exhibits Annexed

3 Opposing Affidavit and Exhibits Annexed

4, 5 Filed Papers: Claim, Answer

Upon the foregoing papers, the motion is granted and the cross-motion is adjourned.

The cause of action herein, sounding in negligence, accrued on December 23, 1997, when Claimant was placed in a restrictive confinement, or arguably on December 18, 1997, when Claimant was placed in Double-Bunk Housing at Auburn Correctional Facility.

While the claim is dated on March 18, 1998, service on the Defendant was not effectuated until March 26,1998. In its answer, the Defendant raised as its Third Affirmative Defense the lack of subject matter jurisdiction due to the untimely service and filing of the claim, to wit, more than 90 days from the accrual of the cause(s) of action. Claimant argues that the claim did not accrue either on December 18 or 23, 1997, but actually on February 25, 1998. However, that later date is nowhere mentioned in the claim. Even utilizing December 23, 1997, as the date of accrual, service of the claim on March 26, 1998 and filing of the claim on March 27, 1998, were accomplished on the 93rd and 94th days thereafter (see General Construction Law §20). The Defendant's answer preserved these defenses with sufficient particularity (Court of Claims Act §11).

Claimant argues that he requested the mailing of his claim on March 18, 1997, but that it did not get mailed until March 24. However, as indicated above, even utilizing the December 23, 1997 accrual date,[1] service and filing would have to have been accomplished by March 23 and I am not persuaded that the delay in approval and mailing was inordinate enough to warrant estopping the Defendant from raising this defense. Furthermore, Claimant has been aware of this defense since the Answer was served on April 27, 1998, and has done nothing to address the jurisdictional objections.

Now, the Defendant moves to dismiss on these grounds, asserting that the claim is untimely served and filed in derogation of Court of Claims Act §10(3). I agree and the Claimant is unable to adequately refute any of the allegations noted above. The claim is untimely, the motion is granted and the claim is dismissed. Accordingly, the trial herein scheduled for October 5, 2000 is canceled.

Claimant has also made a cross-motion for permission to file a late claim. I have adjourned that motion to October 18, 2000 and will treat the now dismissed claim as Claimant's proposed claim as he neglected to include one in his papers.


September 20, 2000
Rochester, New York

HON. DONALD J. CORBETT, JR.
Judge of the Court of Claims



[1]
If I utilize the December 18, 1997 date for accrual, the disbursement request of March 18, 1998 was beyond 90 days itself.