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). 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
Accordingly, it is
ORDERED, that Motion No. M-63616 is hereby GRANTED; and it is further
ORDERED, that Claim No. 100768 is hereby DISMISSED.