New York State Court of Claims

New York State Court of Claims

SIMMONS v. THE STATE OF NEW YORK, #2001-011-535, Claim No. 100755, Motion No. M-62921


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:
2001-011-535
Claimant(s):
ALFONSO SIMMONS
Claimant short name:
SIMMONS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100755
Motion number(s):
M-62921
Cross-motion number(s):

Judge:
THOMAS J. McNAMARA
Claimant's attorney:
Alfonso Simmons, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General(Eileen E. Bryant, Esq., Assistant Attorney General)
Third-party defendant's attorney:

Signature date:
May 1, 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.

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

The claim arises from an incident that is alleged to have occurred on January 6, 1999 when some of Claimant's personal property was lost at Great Meadow Correctional Facility. The ninetieth day after the date of accrual was April 6, 1999. The notice of intention was served on April 7, 1999. The claim was received by the Attorney General on July 21, 1999.

Inasmuch as neither the notice of intention nor the claim were served within ninety days of accrual, the claim is untimely. The court, therefore, is without personal jurisdiction and accordingly, the motion is granted and the claim is dismissed.

May 1, 2001
Saratoga Springs, New York

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



Papers Submitted:

  1. Notice of Motion dated January 5, 2001
  2. Affirmation of Eileen E. Bryant dated January 5, 2000 (sic) with exhibits annexed