New York State Court of Claims

New York State Court of Claims

SMITH v. THE STATE OF NEW YORK, #2001-011-601, Claim No. 101521, Motion No. M-64000


Synopsis


Defendant motion to dismiss on the basis that the claim was not timely served is granted.

Case Information

UID:
2001-011-601
Claimant(s):
MR. MICHAEL SMITH, 97 A 4669
Claimant short name:
SMITH
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101521
Motion number(s):
M-64000
Cross-motion number(s):

Judge:
THOMAS J. McNAMARA
Claimant's attorney:
Michael Smith, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Paul F. Cagino, Esq.,Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 14, 2001
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


The claim is based on an allegation that Claimant was physically assaulted and threatened with physical harm and punitive measures.

Defendant has moved to dismiss the claim on the basis that the claim was not timely served.

Under Court of Claims Act §10(3-b) a claim based upon intentional 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 year of accrual. Court of Claims Act §11 requires that a notice of intention and claim be served either personally or by certified mail return receipt requested.

The claim is alleged to have accrued on August 3, 1999 at Altona Correctional Facility. A notice of intention was received via ordinary mail in the office of the Attorney General on September 15, 1999. The claim was served by certified mail return receipt requested and received on December 6, 1999. The notice of intention though served within ninety days of accrual is without effect because it was not served in the manner required by the statute. The claim though served in the proper manner was not served within ninety days of accrual and therefore, is untimely. The court, therefore, is without personal jurisdiction
(
Thomas v State of New York
, 144 AD2d 882) and accordingly, the claim is dismissed.


November 14, 2001
Saratoga Springs, New York

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



Papers Submitted:

1. Notice of Motion dated August 28, 2001
2. Affirmation in Support of Paul F. Cagino, Esq. dated August 28, 2001 with exhibit annexed
3. Verified Reply of Michael Smith to Defendant Motion sworn to the 4th day of September, 2001 with exhibits annexed