New York State Court of Claims

New York State Court of Claims

WALSH v. THE STATE OF NEW YORK, #2001-011-557, Claim No. 103777, Motion Nos. M-63328, CM-63380


Synopsis


Claimant has moved for an order compelling defendant to respond to a notice for discovery and inspection. Defendant's cross-motion to dismiss on the basis that the claim was not served within ninety days of accrual as required by CCA §10 is granted. Claimant's motion to compel disclosure is denied as moot.

Case Information

UID:
2001-011-557
Claimant(s):
HOWARD WALSH
Claimant short name:
WALSH
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103777
Motion number(s):
M-63328
Cross-motion number(s):
CM-63380
Judge:
THOMAS J. McNAMARA
Claimant's attorney:
Howard Walsh, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General(Dennis M. Acton, Esq., Assistant Attorney General)
Third-party defendant's attorney:

Signature date:
May 29, 2001
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision


Claimant has moved for an order compelling defendant to respond to a notice for discoveryand inspection. Defendant has cross-moved 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. Because the cross-motion may be dispositive, it is addressed first.

Under Court of Claims Act §10(3) a claim based upon an unintentional tort such as is alleged here 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 November 21, 2000. No notice of intention was served. A claim was served on the Attorney General by regular mail on February 8, 2001. Court of Claims Act §11 requires that a claim be served either personally or by certified mail return receipt requested and therefore, service of the claim on February 8, 2001by regular mail was ineffective. Thereafter, claimant served the claim by certified mail return receipt requested on February 23, 2001. Service of this claim, however, was not made within ninety days of accrual as required by the statute and therefore, it is untimely. Consequently, the court is without personal jurisdiction and accordingly, the claim is dismissed. The motion to compel disclosure is denied as moot.


May 29, 2001
Saratoga Springs, New York

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



Papers Submitted:

  1. Notice of Motion dated April 2, 2001
  2. Affidavit in Support sworn to the 2nd day of April, 2001 with exhibit annexed
  3. Notice of Cross-Motion dated April 13, 2001
  4. Affidavit of Dennis M. Action in Opposition to Claimant's Motion and in Support of Defendant's Cross-Motion sworn to the 13th day of April 2001 with exhibits annexed