New York State Court of Claims

New York State Court of Claims

FRANCO v. THE STATE OF NEW YORK, #2000-016-027, Claim No. 97792, Motion No. M-61632


Synopsis


Pro se
claimant's claim was dismissed for failure to timely serve.

Case Information

UID:
2000-016-027
Claimant(s):
GEORGE ALEXANDER FRANCO
Claimant short name:
FRANCO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
97792
Motion number(s):
M-61632
Cross-motion number(s):

Judge:
Alan C. Marin
Claimant's attorney:
George Alexander Franco
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Earl F. Gialanella, AAG
Third-party defendant's attorney:

Signature date:
May 19, 2000
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

In his underlying claim, pro se claimant George Alexander Franco asserts that owing to defendant's negligence, items of personal property were taken from his cell at Sullivan Correctional Facility on November 7, 1997, and he discovered the theft that same day. This is defendant's motion to dismiss the claim on the grounds that it was not timely served. Franco served his claim on the Attorney General on February 9, 1998. See ¶3 of the May 1, 2000 affirmation of Earl F. Gialanella and Exhibit A thereto.

Section 10.3 of the Court of Claims Act provides that with regard to claims such as this one, either the claim itself or a notice of intention to file a claim must be filed within 90 days of accrual of the claim. In this case, the claim accrued on November 7, 1997. Service of Franco's claim occurred more than 90 days later, on February 9, 1998.

"It is well established that compliance with sections 10 and 11 of the Court of Claims Act pertaining to the timeliness of filing and service requirements respecting claims and notices of intention to file claims constitutes a jurisdictional prerequisite to the institution and maintenance of a claim against the State, and accordingly, must be strictly construed . . ." Byrne v State of New York, 104 AD2d 782, 783, 480 NYS2d 225, 227 (2d Dept 1984), lv denied, 64 NY2d 607, 488 NYS2d 1023 (1985) (citations omitted). In short, this Court lacks jurisdiction over Franco's claim.

Accordingly, having reviewed the parties' submissions,[1] IT IS ORDERED that defendant's motion is granted and the claim of George Alexander Franco is dismissed.



May 19, 2000
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [1]Aside from the pleadings, the Court reviewed defendant's notice of motion with supporting affirmation and Exhibits A-B. Claimant filed no opposition papers.