New York State Court of Claims

New York State Court of Claims

TONEY v. STATE OF NEW YORK, #2000-005-566, Claim No. 97591, Motion Nos. M-62342, CM-62416


Defendant's cross motion for dismissal of the claim herein is granted and the Claimant's motion for production of witnesses and documents at trial is denied as moot.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Donald J. Corbett, Jr.
Claimant's attorney:
Devon ToneyPro Se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Edward F. McArdle, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 4, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


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[3]).

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 the Defendant.

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.

October 4, 2000
Rochester, New York

Judge of the Court of Claims