New York State Court of Claims

New York State Court of Claims

NUNEZ v. New York, #2000-015-009, Claim No. 101595, Motion No. M-61039


Synopsis


A notice of intention to file a claim received by the Attorney General on the 91st day after the claim accrued is not timely.

Case Information

UID:
2000-015-009
Claimant(s):
ISRAEL NUNEZ
Claimant short name:
NUNEZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101595
Motion number(s):
M-61039
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Israel Nunez, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: G. Lawrence Dillon, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
March 2, 2000
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision



The motion of the defendant for an order dismissing the claim for lack of jurisdiction is granted. This is a claim by an inmate appearing pro se to recover the value of items of personal property allegedly lost while in the custody of employees of the Department of Correctional Services. The claim alleges that on March 25, 1999 claimant was sent to a hospital and thereafter transferred to a special housing unit. On May 4, 1999, following claimant's release from the special housing unit, he allegedly discovered that certain personal property was missing as it had not been properly secured by prison staff. A notice of intention to file a claim was served upon the Attorney General by certified mail, return receipt requested, and received by him on August 3, 1999. The claim was served by certified mail, return receipt requested, and received by the Attorney General on December 13, 1999. Defendant seeks dismissal upon the ground that the notice of intention was not received by the Attorney General within 90 days of the date that the claim accrued.

Although the claim alleges that it accrued on March 25, 1999, the Court will provide claimant the benefit of the doubt in determining that May 4, 1999 is the correct accrual date. Pursuant to Court of Claims Act § 10 (3) claimant had ninety days from that date in which to serve either a notice of intention to file a claim or a claim upon the Attorney General. "The proper method when computing time periods is to exclude the day of the event and to include the last day up to midnight of that day [General Construction Law § 20]" (Bacalokonstantis v Nichols, 141 AD2d 482, 484). As a consequence, the notice of intention had to be received by the Attorney General no later than August 2, 1999. It was received on the 91st day, August 3, 1999. In the case of Mallory v State of New York, 196 AD2d 925, 926, the Third Department held as follows:
Here, service of the notice of intention upon the Attorney-General was not completed until it was received (Court of Claims Act § 11 [a]). Because that did not occur until the 91st day after accrual of the claim, the Court of Claims lacked jurisdiction over the case and therefore properly granted the State's motion to dismiss.
Applying the rule of law announced in Mallory to the facts of this case requires the granting of the dismissal motion.


March 2, 2000
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated December 28, 1999;
  2. Affirmation of G. Lawrence Dillon dated December 28, 1999, with exhibits.