New York State Court of Claims

New York State Court of Claims

TYLER v. THE STATE OF NEW YORK, #2001-011-502, Claim No. 100490, Motion No. M-62551


Synopsis


Defendant's motion to dismiss the claim on the basis that it was not served within ninety days of accrual as required by Court of Claims Act §10 is granted.

Case Information

UID:
2001-011-502
Claimant(s):
DAVID A. TYLER, 72 A 1265(NYSID #1111092-N)
Claimant short name:
TYLER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100490
Motion number(s):
M-62551
Cross-motion number(s):

Judge:
THOMAS J. McNAMARA
Claimant's attorney:
David A. Tyler, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General(Michael W. Friedman, Esq., Assistant Attorney General)
Third-party defendant's attorney:

Signature date:
January 3, 2001
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant has moved to dismiss the claim on the basis that it was not served within ninetydays of accrual as required by Court of Claims Act §10. The claim is based upon allegations that the Division of Parole, Appeals Unit was negligent and violated claimant's due process rights by failing to render a determination of an administrative appeal filed on December 5, 1997.

Under Court of Claims Act §10 a claim based upon an intentional or unintentional tort, such as is alleged here, must be filed within ninety days of accrual unless a notice of intention is served within that time and then the claim may be filed within one or two years of accrual.

A claim accrues when damages become ascertainable (Waters of Saratoga Springs v State of New York, 116 AD2d 875, affd 68 NY2d 777). Here, the full extent of any damages claimant may have suffered as a result of the failure to determine the appeal became fully ascertainable four months after the appeal was filed because at that point his administrative remedy was deemed exhausted and he had the right to seek immediate judicial review (People ex. rel. Tyler v Travis, 269 AD2d 636). The claim, however, was not received by the Attorney General until June 4, 1999; more than a year after the claim accrued on April 5, 1998. Inasmuch as the claim was not served within ninety days of accrual, it is untimely and the court is without personal jurisdiction. Accordingly, the motion is granted and the claim is dismissed.


January 3, 2001
Saratoga Springs, New York

HON. THOMAS J. MCNAMARA
Judge of the Court of Claims



Papers Submitted:

1. Notice of Motion dated October 10, 2000.
2. Affirmation in Support of Michael W. Friedman, Esq., dated October 10, 2000 with exhibits annexed.
3. Verified reply of David A. Tyler sworn to the 15th day of October, 2000.