New York State Court of Claims

New York State Court of Claims

MENDOZA v. THE STATE OF NEW YORK, #2000-015-063, Claim No. 102434, Motion No. M-61773


When a late claim is not served within the time period set forth in the conditional order granting the late claim motion it will be dismissed for lack of jurisdiction.

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):

Francis T. Collins
Claimant's attorney:
Frank Mendoza, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: G. Lawrence Dillon, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
August 8, 2000
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The defendant's motion for an order dismissing the claim for lack of jurisdiction is granted. This is a claim by a pro se inmate to recover damages for unjust confinement and for the loss of certain personal property while confined. In a decision and order filed on February 8, 2000, this Court granted the claimant permission to serve and file a late claim upon the condition that the claim be served and filed within sixty days of the date of the filing of the decision and order. The sixty day period expired on April 10, 2000. The claim was served upon the Attorney General's Office by certified mail, return receipt requested, on May 5, 2000 and received in the Albany Claims Office on May 8, 2000. The dismissal motion is premised upon the late service of the claim and the claimant argues that his opposition is "[B]ased upon the statement made by Mr. David B. Klingsman [sic], Chief Clerk of the Court, in his letter dated 23 February 2000 . . . in which he clearly cites the following; Please be advised that your time to file pursuant to Judge Collins' order continues to run . . .". Claimant does not otherwise explain his opposition to the motion.

The failure of a claimant to serve and file a claim within the time limitations set forth in Court of Claims Act § 10 deprives this Court of jurisdiction to determine the claim (State of New York v Dewey, 260 AD2d 924). It is the date of receipt by the Attorney General which determines whether the 90 day time period set forth in Court of Claims Act § 10 (3) and (3b) have been complied with (Mallory v State of New York, 196 AD2d 925, 926). The claim before the Court was served more than 90 days after the claim accrued and unless this Court's conditional order filed on February 8, 2000 serves to preserve the claim the dismissal motion must be granted. When a litigant receives a conditional order permitting him or her to serve an otherwise late pleading any condition contained in that order must be complied with or the litigant will lose the benefit of the order (Lyons v Butler, 134 AD2d 576). Of course, the Court has the discretion to relieve a party from its failure to comply with the conditional order but only upon a demonstration of a reasonable excuse for the default and a demonstration of potential merit (Askenazi v Hymil Mfg. Co., 263 AD2d 443; Matter of Simmons v Board of Educ. Union Free School Dist. # 17, Franklin Sq., 169 AD2d 727; Richardson v Ahmed, 175 AD2d 432; Lyons v Butler, 134 AD2d 576, supra at 577).

Claimant's proposed excuse for his default in complying with the conditional order is rejected. The letter sent by the Chief Clerk on February 23, 2000 is not misleading and accurately reflects that as of that date the time to comply with the order filed on February 8, 2000 continued to run. As a result, this Court lacks jurisdiction and the defendant's motion to dismiss will be granted since the claimant has failed to demonstrate a valid excuse for his failure to comply with the requirements of the previous conditional order authorizing the service and filing of a late claim.

August 8, 2000
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated May 23, 2000;
  2. Affirmation of G. Lawrence Dillon dated May 23, 2000, with exhibits;
  3. Affidavit of Frank Mendoza sworn to May 26, 2000, with exhibits.