New York State Court of Claims

New York State Court of Claims

DOE v. THE STATE OF NEW YORK, #2001-009-037, Claim No. 100768, Motion No. M-63616


Synopsis


Defendant's motion to dismiss the claim for untimely service and filing was granted.

Case Information

UID:
2001-009-037
Claimant(s):
JOHN DOE a/k/a Alfonso Elias, Jr.
Claimant short name:
DOE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100768
Motion number(s):
M-63616
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY, JR.
Claimant's attorney:
JOHN DOE a/k/a ALFONSO ELIAS, JR., Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Heather R. Rubinstein, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
September 4, 2001
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant has brought this motion seeking an order dismissing the claim for failure to timely serve and file the claim.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation, with Exhibits 1,2


Affidavit in Opposition 3


Filed Papers: Claim, Answer.

In his claim, claimant seeks damages for injuries he allegedly suffered in an assault by a fellow inmate at Willard Drug Treatment Center on June 12, 1997.

A claim alleging acts of negligence against the State must be served on the Attorney General and filed with the Clerk of the Court of Claims within 90 days of accrual, unless a notice of intention is served upon the Attorney General within such 90 days (Court of Claims Act, § 10[3]). If a notice of intention is so served upon the Attorney General, the claim must then be served and filed within two years from the date of accrual.

In this motion, defendant acknowledges that a notice of intention was served on the Attorney General on August 4, 1997, which date is within 90 days of accrual of the cause of action on June 12, 1997. According to the affirmation in support of this motion, however, the claim, which was served by certified mail, return receipt requested, was received by the Attorney General on July 21, 1999, a date which is more than two years from the accrual date (see Item 2, par. 2). The Court notes that this claim was filed with the Clerk of the Court of Claims on July 22, 1999, also beyond the two year period provided by § 10(3). In his affidavit submitted in opposition to this motion, claimant does not dispute either the service or filing dates, nor has he submitted any documentation to establish that the claim was timely served and filed.

Based on these facts, the Court must conclude that both the service and filing of this claim was not made within two years from the date of accrual, as required by Court of Claims Act, § 10(3). The service and filing requirements of the Court of Claims Act are jurisdictional prerequisites to the institution and maintenance of a claim against the State, and as such must be strictly construed (Finnerty v New York State Thruway Authority, 75 NY2d 721; Byrne v State of New York, 104 AD2d 782, lv denied 64 NY2d 607). This claim, therefore, must be dismissed based upon untimely service and filing of the claim.

The Court notes that in his affidavit in opposition (see Item 3), claimant makes an indirect reference to Court of Claims Act, § 10(8)(a), which permits the Court, upon proper application, to treat a timely served notice of intention as a claim, if the notice of intention contains facts sufficient to constitute a claim. In this case, claimant has not submitted the previously served notice of intention, nor has he made proper application for such relief, and therefore his request is not properly before the Court and has not been considered.

Accordingly, it is

ORDERED, that Motion No. M-63616 is hereby GRANTED; and it is further

ORDERED, that Claim No. 100768 is hereby DISMISSED.


September 4, 2001
Syracuse, New York
HON. NICHOLAS V. MIDEY, JR.
Judge of the Court of Claims