New York State Court of Claims

New York State Court of Claims

TORAN v. THE STATE OF NEW YORK, #2000-015-039, Claim No. 101663, Motion No. M-61391


Synopsis


Service of a notice of intention or a claim is not complete until received by the Attorney General and if that event occurs more than 90 days after the accrual of the claim the claim must be dismissed for lack of jurisdiction

Case Information

UID:
2000-015-039
Claimant(s):
ALFRED TORAN
Claimant short name:
TORAN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101663
Motion number(s):
M-61391
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Alfred Toran, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Joel L. Marmelstein, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
May 23, 2000
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision


The motion of the defendant for an order pursuant to CPLR 3211 dismissing the claim for lack of jurisdiction is granted. This is a claim by an inmate appearing pro se seeking to recover for personal injuries allegedly sustained when he fell from a top bunk bed at Marcy Correctional Facility. Both the claim and the notice of intention to file a claim state that the claim accrued on September 16, 1999. The claim alleges that between August 16, 1999 and October 20, 1999 claimant was denied a bottom bunk pass and a bottom bunk.

Defense counsel contends that both the claim and notice of intention to file a claim were contained in a single envelope which was received at the office of the Attorney General on December 23, 1999. The third and fourth affirmative defenses set forth in the answer plead with the requisite specificity that the Court lacks jurisdiction because neither the notice of intention to file a claim nor claim were served upon the Attorney General within 90 days of the accrual of the claim (Villa v State of New York, 228 AD2d 930).

Pursuant to Court of Claims Act § 10 (3) claimant had 90 days from the time his claim accrued on September 16, 1999 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, either the notice of intention or the claim had to be received by the Attorney General no later than December 15, 1999. The Third Department has held that service of a notice of intention or a claim is not complete until received by the Attorney General and if that event occurs more than 90 days after the accrual of the claim the claim must be dismissed for lack of jurisdiction (Mallory v State of New York, 196 AD2d 925, 926). Here, the affidavits of service relative to the claim and the notice of intention to file a claim were not even executed before a notary public until December 20, 1999. Consequently, neither the notice of intention nor the claim could have been received by the Attorney General within 90 days of accrual. The Court notes that the claim filed with the Clerk of the Court was not received until December 23, 1999.


May 23, 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 March 15, 2000;
  2. Affirmation of Joel L. Marmelstein dated March 15, 2000, with exhibits;
  3. Claim filed on December 23, 1999.