Upon the foregoing papers, this motion is granted.
In lieu of an answer, the Defendant seeks to dismiss the claim herein on the
ground that it was untimely served. The Defendant alleges, without refutation,
that it was served with the claim on March 16, 2001. The claim, which was filed
on February 13, 2001, alleges personal injury to the Claimant at the Willard
Correctional Facility (Willard) "about late May or early June of 1999" when a
ramp upon which Claimant was standing allegedly collapsed. In the claim itself,
Claimant also asserts that he was told that if he filed a claim he could not
complete the program at Willard, and that later, upon his release from Willard
to parole, he was told by his parole officer in Monroe County, that he would be
"violated" if he filed a claim.
The Defendant seeks dismissal on the ground that service of the claim was
untimely, in contravention of the service requirements of Court of Claims Act
§10(3), which requires such service and filing within 90 days of accrual of
the cause(s) of action. Here, the latest possible date of accrual was June
1999, and thus service on March 16, 2001 was well-beyond the 90 day period,
depriving the Court of jurisdiction. The Defendant also notes that Claimant did
not serve a Notice of Intention to file a claim, which would have allowed a
period of up to two years from accrual to serve and file a claim (Court of
Claims Act §10).
In opposition to the motion, Claimant sent a letter to the Court with numerous
attachments appended thereto, purporting to demonstrate that he suffers from a
mental disorder, to wit, bipolar disorder. He requested an adjournment of the
motion so that he could obtain legal counsel after his release from prison. I
granted that request, and adjourned the motion to August 15, 2001, and indeed
sent a copy of my letter to two attorneys whose names were given to me by
Claimant as individuals who might appear on his behalf. Despite the extended
adjournment which I granted, no additional correspondence or appearances on
Claimant's behalf have been made, either from Claimant or any attorney.
Accordingly, the motion is deemed submitted. Claimant's putative excuse for
failing to timely serve or file a claim is noted in his claim as threats to
remove him from a program at Willard or to violate his parole. In his letter to
the Court however, Claimant seems to rely totally upon a mental condition.
Court of Claims Act §10(5) does permit an extension of up to two years for
someone "under a legal disability." While bipolar disorder, a manic-depressive
illness, has been held to possibly make a toll available pursuant to Court of
Claims Act §10(5) (See Wheeler v State of New York, 104 AD2d 496,
498), that decision addresses the release of that claimant's psychiatric and
clinical records to allow a review of a dismissal motion (also see, Bowles v
State of New York, 208 AD2d 440).
In the posture of the present pleadings and papers before me, while there is an
implication that Claimant may have entitlement to a legal disability under
§10 (5), no formal application for such status has been made, and certainly
not on notice to the Defendant. I note that Claimant failed to supply copies of
his correspondence and exhibits (Paper #3 above) to the Defendant. Furthermore,
the purported excuses for the late filing and service contained within the claim
does not address §10(5), and address alleged threats were Claimant to have
filed. Those circumstances might be reviewable in a late claim application
under §10(6), but do not apply to any potential legal disability, as
contemplated in §10(5).
In any event, by granting the Defendant's motion to dismiss here, as the claim
is clearly untimely, Claimant's rights are still protected. If Claimant is
entitled to any relief pursuant to §10(5), he has two years from the
removal of his disability to make a proper application to the Court, on notice
to the Defendant. If he is not suffering from such disability, then he is not
entitled to consideration of §10(5) and the untimeliness noted above would
not be tolled, and dismissal on that basis is required.
The motion is granted and the claim is dismissed.