New York State Court of Claims

New York State Court of Claims

WEATHERLY v. THE STATE OF NEW YORK, #2000-009-407, Claim No. 101691, Motion No. M-61416


Synopsis


Defendant's motion to dismiss for untimely service of the claim is granted.

Case Information

UID:
2000-009-407
Claimant(s):
RICHARD WEATHERLY
Claimant short name:
WEATHERLY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101691
Motion number(s):
M-61416
Cross-motion number(s):

Judge:
Nicholas V. Midey, Jr.
Claimant's attorney:
RICHARD WEATHERLY, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Joel L. Marmelstein, Esq.,
Assistant Attorney General of Counsel.
Third-party defendant's attorney:

Signature date:
May 16, 2000
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision



Defendant has brought this motion seeking an order dismissing the claim on the basis of untimely service. Claimant has not submitted any papers in opposition to this motion.

The following papers were considered by the Court in connection with this motion:

Notice of Motion, Affirmation, with Exhibits 1,2


Filed Papers: Claim, Answer

By his claim, claimant seeks to recover damages for personal property allegedly lost by correction officers at the Gouverneur Correctional Facility. Claimant alleges that on September 28, 1999, following his transfer from Gouverneur Correctional Facility to Auburn Correctional Facility, he discovered that certain items of his personal property were missing. His claim therefore accrued on that date.

Defendant's counsel, in the supporting affirmation submitted herein, avers that claimant served his claim on the defendant on January 6, 2000. The Court notes that the claim was filed with the Clerk of the Court of Claims on December 28, 1999.

At the time that this claim accrued, §10(3) of the Court of Claims Act required that a claim to recover for lost property had to be served on the Attorney General and filed with the Clerk of the Court of Claims within 90 days of accrual.[1] The service and filing requirements of the Court of Claims Act are jurisdictional prerequisites to the institution and maintenance of a claim against the State and therefore must be strictly construed (Finnerty v New York State Thruway Authority, 75 NY2d 721; Byrne v State of New York, 104 AD2d 782, lv denied 64 NY2d 607).

In order to comply with § 10(3), in effect at the time his claim accrued, claimant had to serve and file his claim by December 27, 1999.[2] As set forth above, the claim was not filed until December 28, 1999. The date of receipt of the claim by the Clerk's office is controlling, and not the date of mailing (see, Matter of Aetna Casualty and Surety Co. v State of New York, 92 Misc 2d 249). Furthermore, the claim was not served until January 6, 2000.

Since the claim was not timely served or filed, it must be dismissed.

Accordingly, it is

ORDERED, that Motion No. M-61416 is hereby GRANTED; and it is further

ORDERED, that Claim No. 101691 is hereby DISMISSED.


May 16, 2000
Syracuse, New York

HON. NICHOLAS V. MIDEY, JR.
Judge of the Court of Claims




[1]
§10(9) of the Court of Claims Act, as added by Chapter 412, pt. D, § 2, of the Laws of 1999, effective December 7, 1999, imposes additional requirements on inmates seeking to file a claim for injury to or loss of personal property, which must be satisfied prior to the filing of any such claim. There is no indication before the Court that claimant pursued or exhausted the personal property claims administrative remedy established pursuant to § 10(9).
[2]
Under § 10(3), the time for serving and filing a claim can be extended to one year after accrual of such claim if a notice of intention is properly served upon the Attorney General within 90 days of accrual. There is no indication that claimant availed himself of this opportunity.