New York State Court of Claims

New York State Court of Claims

POGO v. THE STATE OF NEW YORK, #2000-028-101524, Claim No. 100403, Motion No. M-62481


Synopsis


Claim of pro se inmate is dismissed because it was neither filed nor served within 90 days of its accrual.

Case Information

UID:
2000-028-101524
Claimant(s):
ALBERTO POGO
Claimant short name:
POGO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100403
Motion number(s):
M-62481
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
ALBERTO POGO, pro se
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Eileen E. Bryant, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 17, 2000
City:
ALBANY
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on defendant's motion for an order of dismissal.

1. Notice of Motion and Supporting Affirmation of Eileen E. Bryant, AAG, filed October 3, 2000, with annexed Exhibits A-C ("Bryant affirmation")


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 were unsuccessful.

In its answer, the State asserted the following as its first and second affirmative defenses:

First:

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.

Second:

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, Benza, J.).

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).



December 17, 2000
ALBANY, New York

HON. RICHARD E. SISE
Judge of the Court of Claims