On October 4, 2000, the following papers, numbered 1 to 6, were read on motion
(M-62342) by Claimant for the production of witnesses and documents at the trial
herein scheduled for November 1, 2000, and on cross-motion (CM-62416) by the
Defendant for dismissal of the claim herein:
1, 2 Notice of Motion and Affidavit Annexed
3, 4 Notice of Cross-Motion, Affirmation in Support and Exhibits Annexed
5, 6 Filed Papers: Claim, Answer
Upon the foregoing papers the cross-motion to dismiss is granted and the motion
is denied as moot.
The claim herein was filed (Exhibit C to the Cross-Motion) with the Clerk of the
Court on January 2, 1998 and alleges negligence relating to events on or about
September 19, 1997, at Cayuga Correctional Facility, where, inter alia,
Claimant was allegedly assaulted by fellow inmates.
In the Cross-Motion the Defendant alleges that the Claimant served a different
claim upon it than the claim filed with the Clerk. Indeed the "served" claim
(Exhibit A to the cross-motion) received on January 2, 1998, alleges an incident
arising on October 2, 1997, wherein a hospital was negligent in a surgical
procedure. It is clear to me that the claims are totally different, allege
different causes of action, and different dates of accrual.
Accordingly, the Defendant moves to dismiss the filed claim on the ground that
it has never been served with said claim and as such, the Claimant has failed to
timely serve a claim which accrued on or about October 2, 1997, within 90 days
of its accrual (Court of Claims Act §10).
Furthermore, Defendant seeks dismissal on the ground that the claim actually
filed with the Clerk is untimely, contending that it was filed more than 90 days
after its accrual in derogation of §§10 and 11 of the Court of Claims
Act. Indeed, irrespective of which claim it refers to, the Defendant preserved
this defense in its Second Affirmative Defense as required by Court of Claims
Act §11. I note that the Claimant has not responded to the cross-motion
and has defaulted. There is no opposition or dispute with the contentions of
I find that Claim No. 97591 should be dismissed on at least two grounds.
First, it is untimely filed more that 90 days after its accrual, as preserved in
the Second Affirmative Defense (§11). Second, the Claimant never served
Claim No. 97591 upon the Defendant and thus it never obtained jurisdiction over
the Defendant. It is not necessary to address Defendant's other grounds.
Accordingly, the cross-motion is granted and the claim is dismissed. The
motion by Claimant for witnesses and documents is denied as moot.