New York State Court of Claims

New York State Court of Claims

GATZ v. STATE OF NEW YORK, #2000-014-506, Claim No. 101710, Motion Nos. M-61364, CM-61365


Synopsis



Case Information

UID:
2000-014-506
Claimant(s):
MARK GATZ
Claimant short name:
GATZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101710
Motion number(s):
M-61364
Cross-motion number(s):
CM-61365
Judge:
S. Michael Nadel
Claimant's attorney:
Mark Gatz, Pro se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Alan Berkowitz, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 6, 2000
City:
New York
Comments:

Official citation:

Appellate results:
affd 725 NYS2d 864
See also (multicaptioned case)



Decision


The following papers were read on the defendant's motion to dismiss the claim, and on the claimant's cross motion to strike the First through Sixth Affirmative Defenses: Notice of Motion, Affirmation and Exhibits annexed; Notice of Cross Motion, Affidavit in Opposition to Defendant's Motion to Dismiss and in Support of Cross Motion and Exhibits annexed. Filed papers: Claim, Answer.


One of the grounds on which the defendant moves to dismiss this claim is that it was filed and served more than 90 days after its accrual, alleged in the claim to be February 24, 1997. The claimant does not dispute that the claim was filed on January 3, 2000, and that it was served on the Attorney General on December 31, 1999. It is not alleged by the claimant that a Notice of Intention was served on the Attorney General.

Subdivision (3) and (3-b) of Court of Claims Act §10 require that a claim be filed with the Court and served upon the Attorney General within 90 days of its accrual or that the claimant serve a Notice of Intention upon the Attorney General within 90 days and file and serve the claim within one (§10[3-b]) or two (§10[3]) years of its accrual. The failure to do so deprives the Court of jurisdiction, and requires dismissal of the claim. See, e.g., Byrne v State of New York, 104 AD2d 782, lv denied 64 NY2d 607, Mallory v State of New York, 196 AD2d 925.

The defendant's motion is granted; the claim is dismissed. The claimant's cross motion is denied as moot.


April 6, 2000
New York, New York

HON. S. MICHAEL NADEL
Judge of the Court of Claims