New York State Court of Claims

New York State Court of Claims

QUINONES v. THE STATE OF NEW YORK, #2000-018-031, Claim No. 98079, Motion No. M-61608


Defendant successful in motion to dismiss claimant's claim for untimely service of a Notice of Intention and/or filing and service of a claim.

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):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
By: PATRICIA M. BORDONARO, ESQUIRE Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 4, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant brings this motion to dismiss the claim for failure to timely serve and file in accordance with Court of Claims Act §10(3). The following documents were considered on this motion:

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

Affirmation of Patricia M. Bordonaro, Assistant Attorney

General, in Support with all Exhibits attached thereto........2

Filed Documents:



Defendant brings this motion seeking a dismissal of claim number 98079 for failure to timely serve a notice of intention or file and serve a claim in accordance with Court of Claims Act §10(3). Defendant asserts that claimant's cause of action accrued on February 26, 1996 and that a notice of intention was served upon the Attorney General on May 3, 1996. The claim was not filed and served until April 1, 1998. The claim, according to defendant, should have been served by February 25, 1998.

Claimant, apparently in response to defendant's motion, attempted to file a motion to treat the notice of intention as the claim; however, claimant failed to set forth a proper notice of motion and supporting affidavit, and the clerk's office rejected the motion. Claimant served the assistant attorney general with a copy of his motion and she submitted a reply affirmation in response. Since claimant's motion is not before the Court and no other response to defendant's motion has been submitted, the Court will not consider the assistant attorney general's reply affirmation.

Court of Claims Act §10(3) provides that a claim to recover damages for a cause of action for negligence shall be filed and served upon the attorney general within 90 days after the accrual of the claim, unless the attorney general is served with a notice of intention, in which case the claim shall be filed and served within two years after the accrual of the claim.

The claim alleges negligence on the part of the State on February 26, 1996, when claimant, handcuffed and in shackles, was a passenger in a New York State vehicle which was proceeding at an excessive rate of speed, hit a hole in the road and went off of the roadway. Claimant asserts that as a result of the State's negligent and reckless conduct, he suffered serious head trauma and other injuries.

Although claimant timely served a notice of intention, the claim needed to be filed and served within two years of February 26, 1996. Filing and service of the claim on April 1, 1998 was untimely. The failure to timely serve and file a claim is a jurisdictional defect which is subject to waiver pursuant to Court of Claims Act §11(c). Court of Claims Act §11(c) requires the defendant to raise with particularity the untimeliness or improper service of the notice of intention or claim by either a pre-answer motion to dismiss or in the responsive pleading or else the objection or defense is waived.

In this case, defendant raised the untimeliness objection by affirmative defense set forth in its answer.[1] The defense provides: "[a]lthough a timely Notice of Intention was properly served and filed, and although the claim was timely filed, the claim was not timely served in that it was served more than two years after the accrual of the claim." (Defendant's answer and affirmative defense.) Although the defense clearly puts the claimant on notice that the defendant is asserting that the claim was untimely, it includes incorrect information. First, the notice of intention was not filed,[2] and since the claim was both served and filed on the same day, both the filing and the service of the claim were untimely.

Despite these inaccuracies, and although the better practice would be to set forth the statutory authority for the objection, the defense adequately informed the claimant that service of the claim was untimely and the reason why it was untimely. (See, Sinacore v State of New York, 176 Misc 2d 1, 9.)

Where the objection to the timeliness of the claim is adequately raised in accordance with Court of Claims Act §11(c) the defect cannot be ignored. The requirements of the Court of Claims Act §§10 and 11 are jurisdictional prerequisites to instituting and maintaining an action against the State and must be strictly construed. (See, Buckles v State of New York, 221 NY 418; Byrne v State of New York, 104 AD2d 782, lv. denied, 64 NY2d 607.)

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

August 4, 2000
Syracuse, New York

Judge of the Court of Claims

The Assistant Attorney General submits in her affirmation that the objection was raised with particularity in a "timely filed motion to dismiss." If not raised in the answer, the objection would not be timely raised by this motion brought over two years after service of the claim.
Court of Claims Act §10 and 11 no longer require filing of the Notice of Intention. (L. 1995, c. 466) and the Clerk of the Court no longer accepts Notices of Intention for filing.