New York State Court of Claims

New York State Court of Claims

FABIAN v. STATE OF NEW YORK, #2000-006-999, Claim No. 97479, Motion No. M-62859


Synopsis



Case Information

UID:
2000-006-999
Claimant(s):
ANTHONY FABIAN
Claimant short name:
FABIAN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
97479
Motion number(s):
M-62859
Cross-motion number(s):

Judge:
EDGAR C. NeMOYER
Claimant's attorney:
ANTHONY FABIAN, PRO SE
Defendant's attorney:
ELIOT SPITZER, ATTORNEY GENERAL
By: Eileen E. Bryant, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
January 11, 2001
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is defendant's motion for an order of this court dismissing the claim pursuant to CPLR Rule 3211(a)(2) on the ground that the court does not have jurisdiction of the claim. In deciding this motion the court has read and reviewed the following papers:
  1. Notice of motion dated December 14, 2000 and filed December 19, 2000.
  1. Affirmation of Eileen E. Bryant, Esq., Assistant Attorney General, dated December 4, 2000, along with exhibits attached thereto, in support of the motion.
  1. Claim verified November 21, 1997.
  2. Answer verified January 28, 1998.
This claim arose on September 13, 1997 while claimant was an inmate at Wende Correctional Facility. Claimant alleges his personal property was packed by correctional facility officers on September 5, 1997 for his transfer from Coxsakie Correctional Facility to Wende Correctional Facility. On September 13, 1997, claimant was called to the property room at Wende Correctional Facility to obtain his personal property. According to claimant, when he inspected his personal property at this time several items were missing. Claimant alleges the defendant was negligent in the care and transfer of his personal property.

By this motion to dismiss, the defendant alleges the claim was not timely served. Therefore, defendant maintains the court lacks jurisdiction of the claim. The second affirmative defense of defendant's answer sets forth this jurisdictional objection with particularity. Consequently, the defendant is in compliance with Section 11(c) of the Court of Claims Act, and has not waived this jurisdictional objection.

Section 10(3) of the Court of Claims Act requires a claim for negligence be filed within 90 days after the accrual of the claim unless within that 90 day period, a notice of intention to file claim was served upon the Attorney General by the claimant. In the event the notice of intention to file claim was timely served, then the claim for negligence must be filed and served within two years after the accrual. A claim which is not served and filed in accordance with the time restrictions set forth in Court of Claims Act § 10(3) is subject to dismissal because of the absence of subject matter jurisdiction over the defendant. The claimant did not serve a notice of intention to file claim upon the Attorney General.

The 90th day after the accrual of this claim was December 12, 1997. The claim was not served upon the Attorney General until December 19, 1997, which was beyond the 90 day period. In support of this position, the defendant has attached to its moving papers, as Exhibit A, a copy of the envelope in which the claim was received. The envelope shows a postmark of December 16, 1997 and bears a "RECEIVED" stamp of the Office of the Attorney General dated December 19, 1997. This document is uncontroverted. Since the claimant has failed to comply with Section 10(3) of the Court of Claims Act, the court does not have jurisdiction of the claim, and it must be dismissed. Finnerty v New York State Thruway Authority, 75 NY2d 721; Byrne v State of New York, 104 AD2d 782.

Accordingly, it is

ORDERED, that the motion of the defendant is granted, and the claim is hereby dismissed.



January 11, 2001
Buffalo, New York

HON. EDGAR C. NEMOYER
Judge of the Court of Claims