New York State Court of Claims

New York State Court of Claims

THOMPSON v. STATE OF NEW YORK, #2000-018-011, Claim No. 101513, Motion No. M-60973


Synopsis


Defendant was successful on a pre-answer motion dismissing the claim for untimeliness pursuant to Court of Claims Act §10(3) and CPLR 3211(8).

Case Information

UID:
2000-018-011
Claimant(s):
MARK THOMPSON
Claimant short name:
THOMPSON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101513
Motion number(s):
M-60973
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
MARK THOMPSON, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
May 2, 2000
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The Court has reviewed the following documents in determining defendant's motion to


dismiss:

Notice of Motion..............................................................................................1


Affirmation of Joel L. Marmelstein, Esquire, Assistant Attorney

General, with all exhibits attached thereto........................................................2


Answering Affidavit of Mark Thompson..........................................................3


Filed Documents:


Claim..................................................................................................................4


Defendant brings this pre-answer motion seeking dismissal of the claim on the ground that the Court lacks jurisdiction over the defendant pursuant to CPLR 3211(8). Defendant acknowledges that claimant timely and properly served a notice of intention upon the defendant by certified mail, return receipt requested on February 9, 1997, alleging damages as a result of the State's negligence at Riverview Correctional Facility on January 29, 1997, when claimant was in his assigned cubicle and was assaulted with a weapon by a fellow inmate. Defendant asserts however, that claimant failed to timely file and serve a claim within two years of January 29, 1997, in accordance with §10 of the Court of Claims Act. Defendant submits, in support of its motion, the envelope in which the claim was mailed to the attorney general indicating that it was received on December 3, 1999, more than ten months late. The claim was filed with the Clerk of this Court on the same day.

Claimant submits a very well written response and admits that the claim was not filed and served timely. However, he argues that the negligence is continuing in that proper treatment has been consistently denied, and the investigation of the incident proceeded slowly, therefore extending the time-frame within which to commence the action. Additionally, claimant asserts that he was "...somewhat prejudiced by the acts of PLS. At the time of the occurrence, I [he] wrote to them requesting assistance and/or advice, but there [sic] response was slow and further hampered by the shutdown of their offices." (Answering Affidavit, "Fourth" paragraph)

Court of Claims Act §10(3) provides that a claim to recover damages for personal injuries as a result of the negligence of an officer or employee of the State shall be "filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after the accrual of such claim." (Court of Claims Act §10(3).)

Despite claimant's assertion that the negligence of the State is continuing, this claim accrued on January 29, 1997, the date on which claimant was injured and his damages ascertainable. (Augat v State of New York, 244 AD2d 835; Flushing National Bank v State of New York, 210 AD2d 294.)

Claimant's final argument, that he was "somewhat prejudiced by the acts of PLS" is of no avail. The Court assumes that PLS stands for Prisoner's Legal Services and is aware that its budget was severely cut; however, this does not permit the Court to ignore the late filing and service of the claim. Such a defect is jurisdictional and cannot be waived by the Court. (Hodge v State of New York, 213 AD2d 766, 767; Byrne v State of New York, 104 AD2d 782 app denied 64 NY2d 607)

Based upon the foregoing, defendant's motion is GRANTED and the claim is DISMISSED.

May 2, 2000
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims