New York State Court of Claims

New York State Court of Claims

WASHINGTON v. THE STATE OF NEW YORK, #2000-009-445, Claim No. 102978, Motion No. M-62418


Defendant's motion to dismiss for untimely service and filing was granted as to the cause of action asserting assault and battery. All other causes of action asserted in the claim remain.

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):

Nicholas V. Midey, Jr.
Claimant's attorney:
BY: Janet F. Neumann, Esq.,Of Counsel.
Defendant's attorney:
Attorney General
BY: Timothy P. Mulvey, Esq.,
Assistant Attorney General of Counsel.
Third-party defendant's attorney:

Signature date:
November 30, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant has brought this motion seeking an order dismissing the claim.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation, with Exhibits 1,2

Attorney's Affidavit, with Exhibits 3

Memorandum of Law 4

Filed Papers: Claim

This claim seeks damages for personal injuries allegedly suffered by claimant from an assault by correction officers at Auburn Correctional Facility on August 28, 1998.

On November 18, 1998, claimant served a notice of intention to file a claim on the Attorney General. He subsequently served his claim on the Attorney General on August 25, 2000, and filed this claim with the Clerk of the Court of Claims on the same day.

Defendant now moves to dismiss this claim for untimely service.

Pursuant to Court of Claims Act, § 10(3-b), a claim alleging an intentional tort against an officer or employee of the State must be served on the Attorney General and filed with the Clerk of the Court of Claims within 90 days of accrual. The time for serving and filing the claim, however, can be extended to one year from accrual if a notice of intention is properly served upon the Attorney General within such 90 days.

In the instant claim, there is no dispute that a notice of intention was properly and timely served on the Attorney General within 90 days of accrual, thereby extending claimant's time to serve and file his claim to one year from the date of accrual of the alleged assault and battery. The claim, however, which accrued on August 28, 1998, was not served and filed until August 25, 2000, nearly two years from the date of accrual.

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).

The cause of action seeking damages resulting from the alleged assault and battery, not having been served and filed within one year from the date of accrual, must therefore be dismissed for lack of jurisdiction.

In addition to the cause of action alleging assault and battery, however, claimant has specifically alleged various other causes of action in this claim arising out of the same incident, including allegations of negligence, gross negligence, violation of federal Constitutional rights, violation of New York State Constitutional rights, negligent hiring, training, supervision and retention, and failure to provide appropriate medical attention. These additional causes of action were not addressed by defendant in this motion, and defendant has therefore not established that this claim was untimely served and filed as it relates to these causes of action.

Accordingly, it is

ORDERED, that Motion No. M-62418 is hereby GRANTED, in part, and is limited to the dismissal of the cause of action in this claim asserting assault and battery.

November 30, 2000
Syracuse, New York

Judge of the Court of Claims