1. Notice of Motion and Supporting Affirmation of Eileen E. Bryant, AAG,
filed October 3, 2000, with annexed Exhibits A-C ("Bryant
2. Affidavit in Opposition: None received
3. Filed papers: Claim, filed May 20, 1999; Answer, filed July 2, 1999
This claim arose at Coxsackie Correctional Facility on December 13, 1998, when,
it is alleged, claimant's wife arrived at the prison to visit with him and to
deliver two packages. Claimant alleges that his wife turned over the packages
when she arrived at the visiting area, but that they were not there when
claimant later went to retrieve them. Subsequently institutional grievances
In its answer, the State asserted the following as its first and second
The claim was not filed within 90 days after the claim accrued, as required by
Court of Claims Act §§ 10(3), 10(3-b) and 11, and the Court lacks
subject matter jurisdiction of the claim.
The claim was not served within 90 days after it accrued, as required by Court
of Claims Act §§ 10(3), 10(3-b) and 11, and the Court lacks subject
matter jurisdiction of the claim and personal jurisdiction over the State.
These statements are sufficiently particular to provide notice of the defense of
untimeliness in that they include (1) reference to the time period within which
the filing (and/or service) should have occurred and (2) the statutory authority
for such requirement. (see, Smith v State of New York, Claim No.
85799, Motion No. M-48029, filed July 20, 1993, Benza, J.; Kanaval v State
of New York, Claim No. 86053, Motion No. M-47990, filed July 20, 1993,
Defendant now moves to dismiss this claim on the ground of untimeliness. The
claim was received by the office of the Attorney General on May 24, 1999 (Exh A,
Bryant affirmation) and, as noted above, a copy of the claim was filed with the
Court on May 20, 1999. The ninetieth day after December 13, 1998 was March 13,
1999, and thus the claim was filed and served in an untimely manner. The time
and manner of service requirements contained in the Court of Claims Act are
jurisdictional in nature and must be strictly construed (Selkirk v State of
New York, 249 AD2d 818), and consequently the claim must be dismissed.
Claimant's only recourse is to seek permission to file an untimely claim
pursuant to Court of Claims Act §10(6).