New York State Court of Claims

New York State Court of Claims

Byrdson v. The State of New York, #2000-011-506, Claim No. 101453, Motion No. M-61104


Synopsis


Defendant has moved to dismiss the claim on the basis that it was not served within ninety days of accrual as required by Court of Claims Action, Section 10.

Case Information

UID:
2000-011-506
Claimant(s):
Troy Byrdson, #96 A 1887
Claimant short name:
Byrdson
Footnote (claimant name) :

Defendant(s):
The State of New York
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101453
Motion number(s):
M-61104
Cross-motion number(s):

Judge:
Thomas J. McNamara
Claimant's attorney:
Troy Byrdson, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General(Eileen E. Bryant, Esq., Assistant Attorney General)
Third-party defendant's attorney:

Signature date:
March 22, 2000
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant has moved to dismiss the claim on the basis that it was not served within ninety

days of accrual as required by Court of Claims Act §10.

Under Court of Claims Act §10(3), a claim based upon an unintentional tort such as is alleged here must be filed within ninety days of accrual unless a notice of intention is served within that time and then the claim may be filed within two years of accrual. Court of Claims Act §11 requires that a notice of intention and claim be served either personally or certified mail return receipt requested.

The claim arises from an incident that is alleged to have occurred on December 5, 1997. A notice of intention was received via ordinary mail in the office of the Attorney General on March 4, 1998. The claim was served on the Attorney General on October 28, 1999. The notice of intention though served within ninety days of accrual is without effect because it was not served in the manner required by the statute. The provision in the statute extending the time for service of the claim, therefore, did not apply. Inasmuch as the claim was not served within ninety days of accrual as required by the statute, it is untimely. The court, therefore, is without personal jurisdiction and accordingly, the claim is dismissed.


March 22, 2000
Saratoga Springs, New York

HON. THOMAS J. MCNAMARA
Judge of the Court of Claims


Papers Considered:
  1. Notice of Motion dated January 24, 2000.
  2. Affirmation of Eileen E. Bryant, Esq., dated January 24, 2000 with exhibits annexed.
  3. Affidavit in Opposition of Troy Byrdson sworn to the 10th day of February, 2000.