New York State Court of Claims

New York State Court of Claims

WIGGINS v. THE STATE OF NEW YORK, #2000-015-076, Claim No. 89975, Motion No. M-61926


Synopsis


The Court lacks jurisdiction to consider negligence claim of this pro se inmate since neither a claim nor a notice of intention to file a claim was served upon the Attorney General within 90 days of accrual.

Case Information

UID:
2000-015-076
Claimant(s):
TIMOTHY WIGGINS
Claimant short name:
WIGGINS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended sua sponte to reflect the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
89975
Motion number(s):
M-61926
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Timothy Wiggins, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Dennis M. Acton, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
August 29, 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 3212 granting summary judgment dismissing the claim for lack of jurisdiction is granted. This is a claim by a former inmate appearing pro se to recover upon theories of negligence and intentional tort for the withholding of sixty-six hours of compensation which claimant alleges he was due to be paid between January and April of 1994. In particular, claimant alleges that he was paid for only five days of his assigned seven day work week. It is alleged that on March 7, 1994, the claimant made Deputy Superintendent Allard aware of the situation and the Deputy Superintendent negligently failed to investigate his complaint. It is further alleged that the intentional acts of correction officers Vachon and Bedora deprived claimant of his constitutional rights to due process and equal protection. Finally, it is alleged that correction officer Curry intentionally violated claimant's rights on April 24, 1994 when he improperly issued claimant a disciplinary ticket for refusing a direct order to work on a weekend.

The claim and notice of intention to file a claim were served upon the Attorney General on August 19, 1994. The fourth affirmative defense in the answer alleges that, "[t]he claim is untimely and, therefore, lacks jurisdiction with respect to all causes of action accruing before May 21, 1994 since no claim nor notice of intention was properly filed or served within ninety (90) days of date proceeding [sic] May 21, 1994". The defendant seeks dismissal based in part upon the contention that the Court lacks jurisdiction since neither a claim nor notice of intention to file a claim was served within 90 days of the accrual of the causes of action set forth in the claim. Claimant has not opposed the motion.

The law is settled that in order for this Court to obtain jurisdiction of a negligence claim against the State, the claim or notice of intention to file a claim must be served within 90 days of the date that the claim accrued if the State raises the defense with sufficient particularity in its answer as required by Court of Claims Act § 11 (c) (Flushing Natl. Bank v State of New York, 210 AD2d 294). Although less than clearly stated, the Court finds that the timeliness defense is asserted with sufficient particularity in that it alleges a lack of jurisdiction based upon untimely service as to any events occurring prior to May 21, 1994 (Sinacore v State of New York, 176 Misc 2d 1; Fowles v State of New York, 152 Misc 2d 837). As to an intentional tort, the Third Department stated the applicable law in the case of Selkirk v State of New York, 249 AD2d 818, 819, as follows:
The Court of Claims does not obtain jurisdiction to adjudicate a claim unless the claimant timely files a claim or a notice of intention to file a claim (see, Mallory v State of New York, 196 AD2d 925). Insofar as intentional torts are concerned, the filing must occur within 90 days of the accrual of the claim (Court of Claims Act § 10 [3-b]).
The allegations of the claim establish that the causes of action sued upon accrued between January of 1994 and April 24, 1994. Since neither a claim nor notice of intention to file a claim was served upon the Attorney General within 90 days of accrual, the claim must be dismissed for lack of jurisdiction.


August 29, 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 June 14, 2000;
  2. Affidavit of Dennis M. Acton sworn to June 14, 2000, with exhibits.